Legal Feeds Blog
Trial of Sen. Mike Duffy to resume Thursday, Canadian Press
Katelynn Sampson inquest to hear from Children's Aid Society, Canadian Press
Closing arguments to begin at Guy Turcotte trial, Canadian Press
A new report on the experience of self-represented litigants in summary judgment motions has at least one law professor concerned about unfairness to those unfamiliar with the process.
“They’re pushing on an open door because they know there’s already a bias here,” says University of Windsor Faculty of Law professor Julie Macfarlane of the growing use of summary judgment motions by lawyers acting against unrepresented parties.
Today, the National Self-represented Litigants project released a report on the experience of self-represented litigants in regards to summary judgment motions brought in their cases.
Working with Katrina Trask and Erin Chesney, Macfarlane, who’s director of the project, compared the results of summary judgment motions involving self-represented parties in both 2004 and 2014, the year in which the Supreme Court of Canada released its landmark decision in Hryniak v. Mauldin.
In 2004, the researchers found five cases across Canada involving a summary judgment motion with a self-represented party. By 2014, the number of cases had increased to 61.
All but four of the 2014 cases involved a motion brought by a party with counsel. The success rate of the motions was 96 per cent, a number Macfarlane calls “extraordinary.”
“There is a risk here, and the risk is what we’re trying to report on,” she says.
She cites a concern that parties with counsel are using summary judgments as a tactic against those unfamiliar with the system and who are “completely confused.”
“We need to be more sensitive to the fact that people make mistakes,” says Macfarlane.
“The much deeper problem is a lot of people who are in a legal process now are not managing what they need to do in order to represent themselves properly,” she adds.
The success rate for summary judgment motions was similar even after removing cases in which there were findings that the unrepresented party had been vexatious.
The researchers also looked at Ontario-specific data involving motions under rules 20 and 21 of the Rules of Civil Procedure. Using those criteria, the number of cases involving unrepresented parties was four in 2004 with three of them brought by people with counsel. By 2014, there were 13 such motions with 88 per cent of those brought by represented parties having been successful.
Given the numbers, Macfarlane is calling for some assistance to help unrepresented litigants respond to summary judgment motions.
“In some of these cases, they had literally left off a comma,” she says, raising a concern about access to justice for those without counsel.
Part of Macfarlane’s concern is around judges’ attitudes and potential bias given what she says is their understandable difficulty in dealing with unrepresented parties. But, she adds, it’s unfair to hold such litigants to the same standards as lawyers.
And with several courts considering new summary judgment procedures in light of Hryniak, Macfarlane is urging caution.
“We have to be careful about how we put those new procedures together,” she says.
Police say Peterborough mosque deliberately set on fire, Canadian Press
|‘Once a debt is paid or cleared, that’s it, end of story, and I think that’s a ruling the public can support and understand clearly,’ says Joel Watson.|
Sections of Ontario’s Highway 407 Act frustrate the purpose of financial rehabilitation under the federal Bankruptcy and Insolvency Act, the Supreme Court of Canada ruled in a decision released today.
“In my view, s. 22(4) of the 407 Act is inoperative to the extent that it conflicts with s. 178(2) of the BIA. This provision cannot be used by ETR to enforce an otherwise discharged provable claim contrary to s. 178(2) of the BIA,” wrote Justice Clément Gascon in 407 ETR Concession Co. v. Canada (Superintendent of Bankruptcy).
Shibley Righton LLP partner Joel Watson says it’s a welcome ruling that properly upholds the bankruptcy legislation.
“It’s a masterful ruling,” he says.
“The  act is a modern-day equivalent of debtor prisons that says we’re going to virtually incarcerate you until you pay your debts, but you can’t work to pay your debts while you’re incarcerated,” he adds.
“Once a debt is paid or cleared, that’s it, end of story, and I think that’s a ruling the public can support and understand clearly.”
In the original matter, Matthew David Moore had amassed a massive $34,977.06 debt to the 407 ETR Concession Co. Ltd. after using the toll route about 2,000 times between August 1998 and March 2007, according to the agreed statement of facts. He never made payments for the use and in early 2005 and again in late 2006, 407 ETR sent notice to the registrar of motor vehicles, which refused to validate Moore’s vehicle permits when they expired.
Moore filed for bankruptcy in November 2007 and was granted an absolute discharge in June 2011, but 407 ETR continued to seek the costs. He brought a motion before the registrar of bankruptcy and then to the Superior Court of Justice seeking to release his debt to 407 ETR upon satisfying the terms of his conditional discharge order and requested an order compelling the Ministry of Transportation to issue a vehicle permit to him upon payment of the applicable licencing fees by virtue of an operational conflict between s. 22 (4) of the 407 Act and the bankruptcy law.
In a decision in October 2011, the court dismissed the motion and held that there was no conflict in the operation of the acts. According to the agreed statement of facts, that, too, was appealed in late 2013 and the Court of Appeal found that there was no operational conflict between the two provisions. However, the appeal court also found that s. 22(4) of the 407 Act frustrated the purpose of the bankruptcy legislation by denying a vehicle permit to a driver following his discharge from bankruptcy. The court reasoned that one of the purposes of the bankruptcy act was to give discharged bankrupts a fresh start and that the provision of the 407 act that barred Moore from obtaining a vehicle permit was inoperative by reason of the doctrine of paramountcy.
407 ETR appealed that ruling to the Supreme Court on the grounds the appeal court had erred in several areas. Among other things, it argued the appeal court had defined the scope and purpose of the bankruptcy legislation too broadly.
“Gascon’s ruling is ultimately so principled, candid, and helpful and this level of common sense is really needed because it makes the judicial system far more effective,” says Watson.
Paul Bernardo book sparks outrage against Amazon, Canadian Press
Rape kits will finally be available in Squamish, B.C., Canadian Press
Man charged in killing of elderly woman in Toronto, Canadian Press
|‘I think it was a well-intentioned but rash promise made during an election, but they don’t have to be tied to it,’ says Peter Showler.|
“We need to move away from focus on the deadline and ensure that we do it properly,” says Peter Showler, a lawyer who was chairman of the board from 1999 to 2002. “If we did this in six months, it would be an amazing success. It would be a shining historical moment for Canada, but other than temporary housing on military bases, it’s not possible.”
The comments come as the new Liberal government works on a plan to fulfil its promise to resettle 25,000 Syrian refugees this year. Even rushing to shelter refugees on military bases would require a loosening of the protracted, albeit thorough, refugee-screening process, says Showler. While that may not be the best course of action, Showler suggests it would allow for a smoother selection process.
“If you’re going to be doing a triage for low security-risk groups, that’s quite easy to do. We’re choosing 25,000 out of 4.5 million. My God, if you gave me gave me a team of people, I could go over there and in a week identify 25,000 and I would be very confident we would have no security concerns whatsoever.”
Instead of case-by-case screening, for instance, Ottawa can be reasonably assured by selecting from pools of refugees. Relatives of Syrians who are already living in Canada must be a first priority, says Showler, but he also points to single mothers who haven’t been involved in the physical battle.
Syrians who fled the country within the first two years of the uprising are another relatively safe group. “The first wave of refugees that fled in the first two years, many of them were urban, middle-class, educated professionals who were opposing the [Bashar] Assad government because of secular and democratic values. They were some of the first to flee, and we know when they fled because they registered with [the United Nations refugee agency].”
While concerns have been raised about jihadists entering the country under the guise of being refugees, Showler calls that notion “complete fear-mongering” and insists that Islamic extremists weren’t among the first wave of refugees coming out of Syria. “Historically, we’ve always seen that pattern where people are raising security concerns and they have almost exclusively been unfounded.”
In Showler’s view, Ottawa will also have to do away with its practice of granting permanent resident status after a thorough assessment if it wants to accelerate the settlement process. Instead, he suggests the government should be granting refugees temporary resident permits.
Ultimately, though, Showler believes the government should be backing away from its unrealistic promise and looking to resettle Syrian refugees in a way that’s “fast but fair.”
“I can categorically tell you: If settling means being placed successfully in Canadian communities, then absolutely that cannot happen by the end of the year. And I just wish they would stop talking about it. I think it was a well-intentioned but rash promise made during an election, but they don’t have to be tied to it.”
Nova Scotia couple found dead in Mexican hotel, Canadian Press
- Patrick Shea continues effort that led to honorary call to the bar last year
|‘It’s fundamentally important that we recognize the sacrifice of these people and their families,’ says Patrick Shea.|
In the last few months, he has visited Quebec, Manitoba, and Alberta to scour archives that might hold details on the fallen soldiers and if he’s lucky, their photos. He also plans to travel to British Columbia and Saskatchewan soon.
“It’s fundamentally important that we recognize the sacrifice of these people and their families,” says Shea, a former officer in the Canadian Forces reserves.
“For some of them, there are no more families left. . . . So I think if falls upon us on the 100th anniversary of the First World War to sort of reflect back and remember.”
Last year, Shea wrote the biographies of about 60 Ontario law students who died in the war to mark the 100th anniversary. His compilations told the stories of the students’ lives, sometimes through the letters they wrote while abroad.
“I felt wretched leaving you looking so wretched and so we’re pretty wretched all around,” wrote one of those students, Capt. Gerald Blake, in a letter to his fiancée dated June 19, 1915.
“But someday if I hadn’t gone we all would have been ashamed. I would have been a grouch for the rest of my days — and now perhaps I will be only half the time!” wrote Blake, the great grandchild of the founder of Blake Cassels & Graydon LLP.
Last year, the Law Society of Upper Canada honoured Blake and 57 other students at an honorary call to the bar ceremony.
While other law societies may not have the resources to hold a similar ceremony, Shea still plans to approach them to see what they can do. “I’m going to approach all of the law societies to do something to honour their students,” he says.
Shea has so far compiled 500 biographies of lawyers and law students across the country who died in the war.
“I’m able to produce basic biographies — military records and other information like ancestry — from databases, but to get pictures of them and other detailed information, I’m actually going out to the archives,” he says.
Shea’s goal is to publish the biographies both online and in a book format by 2018, a year that will mark the 100th anniversary of the end of the war.
War hero's father has obstruction trial adjourned, Canadian Press
Katelynn Sampson struck so hard her liver ruptured: pathologist, Canadian Press
|Scott Jolliffe and Peter Lukasiewicz will both have roles on the firm’s global board of Gowling WLG.|
Lukasiewicz, who’s currently the firm’s external managing partner, will take over as chief executive officer effective Jan. 1. He’ll also serve as a representative on the global board of Gowling WLG, the new international legal practice created by the merger of Gowlings and Wragge Lawrence Graham & Co. announced in July.
Lukasiewicz was the managing partner of the Toronto office of Gowlings for 15 years. He took on the external managing partner two years ago.
Jolliffe told the firm’s partners more than a year ago he wouldn’t be seeking a renewed term.
“I felt it was time to build for the future with a new CEO,” says Jolliffe.
The firm launched an internal nomination process and the nominating committee recommended Lukasiewicz. The firm’s partners voted on that recommendation in July.
Lukasiewicz, a commercial litigator, has been at Gowlings for his entire legal career.
Jolliffe isn’t leaving the firm. He’ll take on a new role as one of Gowlings’ three representatives on the global board of Gowling WLG.
“That board is being launched Jan. 18 and it’s important to me it gets off to a really good start and that we continue to grow our firm in a global, international sense. I will take a very active role in that aspect of the combined firm,” he says.
In a rapidly changing legal market, Jolliffe says the firm has been working in various areas to achieve greater efficiencies.
“We’ve been developing and implementing systems to project manage our larger deals and litigation files and we’ve designed special software to take over processes that are people intensive in order to automate them and make them more efficient and cheaper but more effective in terms of results,” he adds.
As external managing partner, Lukasiewicz has been focused on client relationships, the rapidity of change taking place in the legal market, and the need to innovate and “continually do so more quickly than we have ever done before.”
“For me, a priority is our Canadian business and to continue to consolidate and solidify that business and expand it in the areas in which we excel,” he says, noting that with the expansion with Wragge Lawrence & Graham, the firm will now attract clients that may not have not previously considered Gowlings.
Lukasiewicz says the firm doesn’t have a plan to go into the U.S. market.
“That is not our strategy as a global legal practice,” he says.
Jolliffe says alternative competition in the marketplace is inevitable and the firm needs to be ready to manage the disaggregation of legal services and parcel out pieces of work to offshore or near-shore alternatives.
“There is no sense fighting what in-house counsel feel is best for their business. We have to be in tune with that and adaptable to deal with it,” says Jolliffe.
Jolliffe says it was a “whirlwind” in the early 1990s to early 2000s when Gowlings grew from a regional firm to a national firm.
“For me, my mandate was to grow Gowlings to be a dominant national firm and that’s what I did,” he says.
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