The Ontario Court of Appeal has dealt a blow to the notion that polluters are responsible for fixing their messes. The court rejected a municipality’s bid to challenge an order putting it on the hook for someone else’s spill by calling evidence that another party was at fault.

The Ontario Court of Appeal has dealt a blow to the notion that polluters are responsible for fixing their messes. (Photo: Shutterstock)

“Evidence of the fault of others says nothing about how the environment would be protected and the legislative objective served if the director’s order were revoked,” wrote Justice Stephen Goudge in Kawartha Lakes (City) v. Ontario (Environment) on Friday.

“Indeed, by inviting the tribunal into a fault finding exercise, permitting the evidence might even impede answering the question in the timely way required by that legislative objective.”

Environmental lawyers have been closely watching the case since the Environmental Review Tribunal upheld the Ministry of the Environment’s order under the Environmental Protection Act directing the city to remediate and prevent any further discharge of furnace oil on its property. But the 2008 spill happened on the property of Wayne and Liana Gendron during a delivery of fuel oil. The oil migrated onto the city’s property and into Sturgeon Lake. While the ministry first issued an order to the Gendrons, they had run out of money to do offsite remediation by March 2009.

The city then unsuccessfully sought to challenge the ministry director’s order at the tribunal and later the Divisional Court. All parties agreed the city wasn’t at fault, a fact that made the case an important one for environmental lawyers accustomed to the notion of making polluters fix their messes.

“Just picking on someone innocent and making them pay for it . . . it’s scary,” says Toronto environmental lawyer Dianne Saxe, who notes the rulings make it more difficult to advise clients affected by a neighbouring spill who may now question whether they should report an event to the ministry.

Despite the concerns, the appeal court emphasized the overriding objective of protecting the environment.

“I agree with the tribunal and the Divisional Court that evidence that others were at fault for the spill is irrelevant to whether the order against the appellant should be revoked,” wrote Goudge. “That order is a no fault order. It is not premised on a finding of fault on the part of the appellant but on the need to serve the environmental protection objective of the legislation.

“The tribunal had to determine whether revoking the director’s order would serve that objective. Deciding whether others are at fault for the spill is of no assistance in answering that question.”

Rulings throughout the case have faulted the city for blaming other parties without offering a solution for the pollution should it succeed in getting the order revoked. But for Saxe, that’s exactly what the city was trying to do in arguing there were other parties involved that could fix the problem.

“There’s no effective right of appeal,” she says in summarizing the implications of the case.

In the end, the appeal court dismissed the city’s appeal but made no order as to costs. Of course, the ruling doesn’t stop the city from trying to recover its costs through other means. As Goudge noted, the city has made use of s. 100.1 of the act that allows a party subject to a no-fault order to seek to recover its costs.

That matter involving the Gendrons, Thompson Fuels Ltd., and the Technical Standards and Safety Authority is ongoing, according to Goudge. But according to Saxe, success in recovering costs is very rare.

“Almost always they don’t get it,” she says.

It’s going to be a busy week at the Supreme Court of Canada with nine appeals scheduled to be heard.

May 13 — Federal Court — Eli Lilly Canada Inc. v. Novopharm Ltd.

Intellectual property law: This case relates to a patent dispute over the medicine olanzapine, which could potentially be used to treat central nervous system diseases like schizophrenia. Eli Lilly applied for the patent and then Novapharm sought to bring a generic version of olanzapine to market. The central question is whether the Federal Court of Appeal’s creation of a new non-statutory test for utility is a matter of public importance.

Read the Federal Court of Appeal’s decision.

Other related articles:
Federal Court of Appeal upholds invalidity of olanzapine selection patent, Smart & Biggar/Fetherstonhaugh

May 13 — Ontario — Attorney General of Canada v. Zajicek

Criminal law: The Czech Republic sought Bretislav Zajicek’s extradition to stand trial on charges of robbery and property offences from nine years prior. Zajicek had confessed to Czech authorities but he claims the confession was obtained through torture. The minister of Justice wasn’t convinced that his allegations of torture established an abuse of process and therefore issued a surrender order.

Read the Ontario Court of Appeal’s decision.

Other related articles:
Ottawa: Bretislav Zajicek facing extradition over allegations of robbery and property damage in his native Czech Republic, CIReport

May 13 — Alberta — Mian v. R.

Charter of Rights and Freedoms: Mohammad Hassan Mian was charged with drug-related offences but the trial judge found his Charter rights had been breached and excluded the evidence pursuant to s. 24(2) of the Charter. Mian was acquitted. The Court of Appeal allowed the appeal and ordered a new trial.

Read the Alberta Court of Appeal’s decision.

May 14 — Ontario — Katz Group Canada Inc. v. Minister of Health and Long-Term Care

Health law: Shoppers Drug Mart and the Katz Group, which own, franchise, and operate pharmacies in Ontario, applied to quash provincial regulations that prohibit private label generic drugs from being sold. Shoppers and the Katz Group wanted to use their own private label generic drugs instead of purchasing them from an arm’s-length third party, however amendments to the regulation of prescription drug sales in 2010 prevent them from doing so.

Other related articles:
Supreme Court to hear appeal of Ontario generic drug rules, The Globe & Mail 

May 14 — Ontario — Shoppers Drug Mart Inc. v. Minister of Health and Long-Term Care

Health law: This case is related to the one above. The main question is whether the Ontario government can lawfully ban private label generic drugs by regulation or if it has to receive approval from the legislature.

Read the Ontario Court of Appeal’s decision.

Other related articles:
What’s in a Name? Ontario Pharmacies Fight to Substitute Brand-Name Drugs with Private-Label Equivalents, Canadian Appeals Monitor

Will Ontario drug victory be a boost for Shoppers Drug Mart? Financial Post

May 15 — Quebec — Ibanescu v. R.

Criminal law: Mihai Ibanescu was charged with driving with a blood alcohol level over the legal limit and impaired driving. The central issue is whether the Court of Appeal erred by not complying with the stare decisis rule.

Read the Quebec Court of Appeal’s decision.

May 16 — Manitoba — Telecommunication Employees Association of Manitoba Inc. v. Manitoba Telecom Services Inc.

Pensions: When the Manitoba Telephone System was no longer a Crown corporation, employees and retirees became members of a new pension plan. The pension assets and liabilities attributable to members under the old plan were transferred to the new plan. The difference in value was determined to be approximately $43.3 million. The employees and retirees launched an action for payment of the surplus and sought declarations relating to the governance of the new plan. The Court of Queen’s Bench allowed the action in part and ordered MTS to pay the surplus to the applicants. The Court of Appeal allowed the appeal.

Read the Manitoba Court of Appeal’s decision.

Other related articles:
MTS employees taking pension money case to Supreme Court, Metro News

May 16 — Alberta — Vuradin v. R.

Criminal law: Fabian Vuradin was convicted of the sexual interference of an 11-year-old girl along with the sexual assault of two others. Vuradin appealed to have his pretrial custody count towards his sentence. The Court of Appeal allowed the appeal in part. There is a publication ban on the victim’s name.

Read the Alberta Court of Appeal’s decision.

May 17 — Ontario — Castonguay Blasting Ltd. v. R.

Environmental law: Castonguay Blasting was the subcontractor at a highway construction site when rock debris damaged a house and a vehicle on neighbouring private property. The property owners were compensated for the damage but Castonguay was charged one and a half years later for failing to report the discharge of a contaminant into the natural environment contrary to the Environmental Protection Act. The Ontario Court of Justice acquitted Castonguay, but that decision was reversed by the Superior Court. The Court of Appeal allowed the appeal.

Read the Ontario Court of Appeal’s decision.

Other related articles:
Castonguay Blasting Limited fined $25,000 for fly rock discharge, Ministry of the Environment

Castonguay Blasting — A Case Comment, Gowlings

Canada

Some Toronto law firms, in-house lawyers outsourcing legal work to India, Toronto Star

Anti-piracy enforcement firm looking to bring U.S.-style copyright lawsuits to Canada, The National Post

Simple immigration cases to be 'fast tracked' in Federal Court pilot project, Calgary Herald


United States

Former FTC lawyer calls for more antitrust scrutiny for patent pools, Reuters

Increased focus on misclassification in cable installer judgment, Reuters


International

Argentina to face 'very different debt default' if loses legal battle,  Reuters

Capital group files lawsuit over sale of Mexican plant used by drug cartel, Reuters

Cassels Brock & Blackwell LLP can now feel some sense of security about recovering its legal costs in Mauldin v. Cassels Brock & Blackwell LLP after the Ontario Court of Appeal changed the terms of the cost orders in the investment fraud case.

Ontario Court of Appeal (Photo: Gail J. Cohen)

The case, which saw Toronto businessman Robert Hryniak convicted of civil fraud, was back in the appeal court this week for a decision on who should pick up the legal tabs.

Cassels Brock and its former partner Jack Peebles were named as co-defendants for allegedly allowing Hryniak to access to the firm’s trust accounts as he wished. But while Hryniak was found guilty in a summary judgment and ordered to pay $2 million, the court dismissed a summary judgment motion against Peebles and the law firm, deciding the allegations against them must go to trial.

Two groups of plaintiffs, known as the Mauldin group and the Bruno group, sued Hryniak. Both groups had originally won in a summary judgment, but later, an appellate court reversed the decision in the Bruno case, which it sent to trial.

In October 2010, a Superior Court judge had ordered Hryniak to pay Cassels Brock and Peebles for their costs in both motions. The judge had used the Sanderson model to order costs, which follows that the losing defendant pays the cost of the successful defendants.

One of Hryniak’s grounds of appeal was that he shouldn’t have to pay the legal costs of his co-defendants in the Bruno motion. Cassels Brock and Peebles agreed with this appeal, arguing the Sanderson order is inappropriate since Bruno was unsuccessful with all three defendants.

The law firm also said “it is not fair and equitable for it to continue to bear the risk of non-recovery of costs payable by Hryniak under the Sanderson order,” according to the decision.

This week, the appeal court agreed.

“Since Bruno’s motion failed against all three defendants, we set aside the motion judge’s Sanderson order in respect of the costs of the Bruno motion,” the appeal court said.

“The Sanderson order reduced Bruno’s obligation to pay the costs awarded to Cassels Brock and to Peebles by $21,212.27 and $4,545.45 respectively. Bruno is now responsible for payment of these amounts. Hryniak’s obligations to Cassels Brock and Peebles are reduced accordingly.”

When reached by Legal Feeds, a Cassels Brock spokeswoman said the firm would not comment on matters before the courts.

The Supreme Court of Canada has heard and reserved Hryniak’s appeal in relation to the summary judgment in Mauldin case.

Upadate: May 13. Fixed comment from Cassels Brock.

Canada

Winnipeg couple calls Canada's laws 'out of step' with new realities of family making, The National Post

Ontario man facing charges for ties with Al Qaeda facing new trial in Mauritania, Toronto Star

Canadian train attack case sees man charged with visa fraud, Reuters


United States

Supreme Court ruling in hospital merger could prompt more antitrust challenges, Reuters

Book publisher backed by litigation-funding firm loses suit against Apple, Reuters


International

Indian Supreme Court judge denounces top police agency, Reuters

Serbian retail tycoon indicted over disputed privatization deal, Reuters

In a long-standing battle with the Law Society of Upper Canada, former lawyer Harry Kopyto took his case all the way to the Supreme Court of Canada, and ultimately lost.

Harry Kopyto has been denied the chance to argue his case at the Supreme Court of Canada.

Today the SCC dismissed his application for leave to appeal.

Kopyto sought to be grandfathered as a paralegal in Ontario after he was disbarred as a lawyer in 1989 for overbilling legal aid. The law society initiated a good character hearing, which Kopyto used to challenge the LSUC’s jurisdiction to regulate paralegals, arguing it violates the Constitution and federal competition laws.

The law society began regulating paralegals in May 2007.

“It actually restricted access to justice by giving lawyers a monopoly for legal services and legal advice and eliminating the more affordable competition, the paralegals,” Kopyto told Law Times in February 2011.

“They claim they took over because paralegals were committing criminal acts and were incompetent. I want to see that evidence but I don’t think it exists. It was no worse with paralegals than it was with lawyers. The real reason they did it was to advance their own economic agenda.”

The case has been through three separate hearing panels, beginning in late 2009, after Kopyto made repeated accusations of bias.

Kopyto filed a motion to stay the good character hearing, claiming the regulatory regime was unconstitutional. The law society then sought to have the motion quashed, which was granted by the hearing panel on the basis that the panel wasn’t competent to hear constitutional challenges as they are better suited for the courts.

Kopyto sought judicial review of this decision, but the Divisional Court sided with the hearing panel. So Kopyto took his statement of claim to the Ontario Superior Court seeking five declarations:

• that bylaw 4 of the Law Society Act constituted an “anti-competitive act” as defined in the Competition Act;
• that the LSUC had abused its position by restricting access to justice due to its assumption of regulatory jurisdiction over paralegals;
• that the LSUC acted in bad faith and was in a conflict of interest by dealing with the paralegal profession;
• that bylaw 4 was not in the public interest because it restricted paralegals’ practice, contrary to the enabling statute; and
• that bylaw 4 violated the constitutional right of access to affordable justice.

The court ultimately ruled against him. In November, the Ontario Court of Appeal also dismissed Kopyto’s appeal.

“[W]e see no possibility that the appellant’s attack on the constitutionality of the legislation can succeed,” stated the appeal ruling. “It is plain and obvious that this claim, no matter how drafted, is doomed to fail.”

For more on this story, read “Kopyto’s long battle with LSUC."

Canada

Canada threatens to take EU to the WTO over accusations of 'breaking international trade rules', Reuters

Elections commissioner says Manitoba premier did not break elections law, Calgary Herald

Former Laval mayor arrested by Quebec corruption squad, Toronto Star


United States

Chief prosecutor denies investigation into file-sharing site shows Washington 'bowing' to Hollywood, Reuters

American Antitrust Institute launches plan to teach judges about antitrust, Reuters


International

China-based online services provider Subaye sued over 'fraudulent scheme', Reuters

 Prosecutors aim for another trial for Berlusconi over alleged bribing of a senator, Reuters

British Columbia’s attorney general is not required to be a lawyer, the province’s appeal court has ruled.

The B.C. Court of Appeal yesterday said it would uphold the B.C. Supreme Court’s decision in Askin v. Law Society of British Columbia.

The case was sparked after Shirley Bond was appointed as acting attorney general in August 2011, before becoming minister of justice and attorney general in February 2012. She is the first woman to hold these positions in B.C.

B.C. resident Lesslie Askin believed Bond was unqualified to hold the post and contacted the law society, which rejected her complaint on the grounds it lacked the necessary jurisdiction.

Askin took the case to court as a self-represented litigant, arguing that Bond’s appointment was statute barred due to her lack of legal training, and the LSBC was incorrect to say it lacked jurisdiction.

In a decision last June, Justice Stromberg-Stein said the LSBC was correct and Askin’s overall petition was “devoid of merit.”

She added: “To conclude that only persons entitled to practise law qualify for the appointment as attorney general would impermissibly constrain the Crown prerogative of ministerial appointment exercised by the lieutenant governor and the lieutenant governor in council.

“Many predecessor attorneys general have been non-lawyers and non-practising lawyers,” she said.

Askin appealed the decision, basing her argument on four provincial statutes: the Constitution Act, the Attorney General Act, the Queen’s Counsel Act, and the Legal Profession Act.

Cameron Ward, whose firm represented Askin in her appeal, says he argued at the April 29 hearing that: “Applying all the principles of statutory interpretation, the only conclusion one can draw is . . . that the attorney general must have practised for five years and be entitled to have membership at the Law Society of British Columbia.”

A transcript of the decision is not expected for another two weeks, but the court confirmed to Legal Feeds the appeal was dismissed.

LSBC chief legal officer Deborah Armour told Legal Feeds in an e-mailed statement: “The Law Society’s position has been that the relevant statutes in the province did not require the attorney general to be a practising member of the law society and the B.C. Supreme Court was in agreement. Now, the Court of Appeal has agreed that there is no requirement for the attorney general to be qualified to practise law. The law society is content to have the matter once again resolved and to have confirmation of our interpretation of the Legal Profession Act and other statutes.”

Ward has been instructed by Askin to file an appeal with the Supreme Court of Canada against the latest decision.

He says: “There are some important constitutional and policy implications surrounding this issue as to who may be qualified to hold this position.”

The “primary importance” of the case was highlighted by the attorney general’s counsel during the appeal, he adds.

Bond is the fourth attorney general in the history of British Columbia who has had no legal education or training; federally and in other provinces this has only happened in “exceptional” circumstances, according to Ward. Lawyers have served as attorneys general in the U.K. since 1461, he notes.

Update 3:15 pm: Comments from LSBC

A controversial motion seeking action to expand the scope of paralegal practice was withdrawn hours before the Law Society of Upper Canada’s annual general meeting tonight.

(Photo: Shutterstock)

After intensive discussions over the past week with the law society and the Canadian Bar Association, the 10 paralegals who proposed the motion have decided it’s best not to go head with it, says John Tzanis, president of the Paralegal Society of Ontario.

“We had assurances from the law society treasurer and staff that everything we’re asking for is being done,” Tzanis says, adding that the paralegal group has also heard from OBA president Morris Chochla.

The motion would have asked the law society to look into training programs for paralegals so they can practise fully in areas like family law and immigration law.

Law Times recently reported on the fierce debate the motion had stirred between paralegals, who say it’s time they practised with fewer limitations, and lawyers who argue only law school can prepare a person for the kind of work they do.

“Lawyers and paralegals should be colleagues, we should be working together on all of these issues . . . not in opposition or going to a battle,” Tzanis told Legal Feeds. “It doesn’t make any sense . . . if we’re both fighting for access to justice for the public, why are we battling each other like this?”

The withdrawal of the motion is also meant to thwart the animosity that was expected at tonight’s meeting, which had been moved to a larger venue in expectation of unprecedented attendance due to the controversy.

“We’ve done so much to help build bridges and the last thing we wanted was to create a war of words,” said Tzanis. “I thought there will be some paralegals who don’t represent the majority of us or there will be some lawyers who don’t represent the majority going out there and making some comments that will put us back here.”

Tzanis also said the law society promised to communicate more openly about its follow through with the 2012 Morris report, which recommended creating training programs for paralegals that will allow them to practise more broadly.

Response on Twitter to the motion’s withdrawal was swift with a number of lawyers commenting that if the reason taking it off the table was the moblization of the bar against the motion, it shows the inherent conflict of having one regulator for both lawyers and paralegals.

“If Ontario benchers/lawyers mobilized against it, that is a massive conflict for @LawsocietyLSUC,” tweeted Mitch Kowalski. “And exactly why @LawsocietyLSUC has no business regulating paralegals in the first place.”

“Follow your heart.”

This was one of the main messages from last night’s Diverse Careers for Women in Law panel discussion at the Law Society of Upper Canada.

(l to r) Panellists Susan Lightstone, Elizabeth Jordan, moderator Ronda Bessner, Senator Elaine McCoy, Marla Burstyn, and Justice Miriam Bloomenfeld discuss diverse careers for women in law. (Photo: Heather Gardiner)

Hosted by the Women’s Law Association of Ontario, the panellists at this annual event shared their thoughts on issues women face in the legal profession, such as finding your career path, mentorship, and leaving private practice.

Ontario Court Justice Miriam Bloomenfeld told the audience to “remain true to your inner compass.” As a shy student, she said she hated law school but stayed the course and ended up finding her calling as a Crown attorney.

When she was appointed to the bench in December 2005, she said it was difficult to find a place for herself and remain who she was in this new environment, but she persevered and now has great relationships with the other judges, especially other female judges with whom she has built personal connections.

“Don’t do anything because you think it’s something you should do,” said Bloomenfeld.

On the other hand, don’t be afraid to take chances, they advised.

“Just say yes,” said Senator Elaine McCoy. “It’s a great way to move forward in life.”

When McCoy was a young woman, she said she didn’t know what she wanted to be but an older male lawyer suggested she go to law school. So she enrolled and it was one of the best decisions of her life.

Elizabeth Jordan, director at RBC Capital Markets Compliance, encouraged women to get into business, adding that a legal degree provides so many transferable skills that can be applied to other industries.

The women had differing opinions on how to get a mentor, but they all agreed it’s important to have mentors for every stage of your career.

Susan Lightstone, the senior educational consultant at the Ontario Court of Justice, said mentors will help push your career forward but you have to earn the right to be mentored. Don’t complain to your mentor, she advised, instead come to them with focused questions about your career.

Jordan said you should be strategic about the way you ask someone to be your mentor.

The panellists also acknowledged that for many women, it’s difficult to maintain a work-life balance in private practice. Marla Burstyn, vice chairwoman of the Ontario Health Services Appeal and Review Board, said she left private practice after having two children because she wanted more flexibility.

When considering leaving private practice, she said it’s especially important to network.

“The only way to land on something is to know what’s out there, to know your options,” she said.

For women contemplating leaving the legal profession altogether, Lightstone said “Don’t do it!”

After having her second child, she could only get four months of maternity leave and was forced out of the law due to health issues. To make ends meet, she became a freelance legal writer. It’s hard to get back into the legal profession once you leave, she said. So rather than leaving the law, “think about how you can work as a lawyer in a different way,” she told the audience.

“I always thought of myself as a lawyer [and] I am damn glad I never gave it up,” said Lightstone.