Legal Feeds Blog
Federal government delays measures to trace crime guns, Canadian Press
Ottawa police investigate suspected gang-related shooting, Canadian Press
New Brunswick man charged in connection with homicide, Canadian Press
CALGARY — As the Canadian Bar Association conference got underway this morning, Chief Justice Beverley McLachlin opened with a keynote speech emphasizing the need to balance the pressing need to change the delivery of legal services with lawyers’ professional obligations.
|‘If we are unable to revise ourselves, then we risk irrelevance,’ said incoming CBA president Janet Fuhrer.|
While McLachlin emphasized the need to protect core values, she made clear that resisting change isn’t an option.
“We’re part of it, and there’s no escape,” she said, referring to the technological changes making legal information available in other ways and players such as LegalZoom that are growing rapidly.
In her speech, McLachlin focused on the major challenges facing the legal profession while outlining what she sees as new opportunities that provide some optimism for different ways of doing business, particularly for “nimble, tech-savvy lawyers.”
“Legal systems everywhere are experience an access-to-justice crisis and are responding in different ways,” she said, suggesting Canada has done a good job of trying to address the issues by looking for ways to make legal services more accessible.
Efficiency and affordability, she added, will be key.
“The time-honoured legal phrase ‘with due deliberation’ has no place in the new world in which we live and practise,” she said.
She went on to suggest lawyers will also have to consider a loosening of their dominance over the delivery of legal services to make room for other, cheaper offerings.
“In the age of the Internet, people are questioning why they, the consumers of legal product, should be forced to go to expensive lawyers working in expensive office buildings located in expensive urban centres. Why, they ask, should a client retain lawyers, when integrated professional firms can deliver accounting, financial and legal advice?” she said.
“The old assumptions are being questioned,” she added, noting the question isn’t whether there will be liberalization but how it will happen.
“We must not close our mind to the changes that are being increasingly forced on us.”
McLachlin spoke in Calgary as the CBA conference got underway with a significant focus on how lawyers with a focus on innovation and “building a better lawyer.” Sessions at the conference will cover topics such as innovation and the future of law firms as well as the role of things like bitcoin, Google Glass, and three-dimensional printing in the practice of law.
In her speech this morning, outgoing CBA president Michele Hollins touted the CBA’s role in helping lawyers adapt to the changes.
“It’s a great time to be talking about innovation in the legal profession but it’s an even better time to be leading that conversation,” she said.
The comments come as the CBA itself faces significant change as it considers its Rethink process aimed at reinvigorating the organization to make it more relevant to lawyers. It was a theme incoming president Janet Fuhrer emphasized in her remarks to the CBA council yesterday.
“Every aspect of what we do is on the table and under the microscope,” said Fuhrer, who called on lawyers to embrace the CBA’s Legal Futures, Equal Justice, and Rethink efforts underway. “If we are unable to revise ourselves, then we risk irrelevance.”
Despite those challenges, Hollins noted the CBA has continued to play a significant role.
“We have tackled issues in every corner of the law,” she said, citing the association’s significant submissions on Bill C-51. And with a federal election underway, she said, it would be playing a role in trying to raise the access-to-justice issues it has been focusing on during the campaign.
To that end, she announced a new Twitter hashtag, #whataboutalex, aimed at discussing Canadians’ experiences in the justice system and the challenges they face.
Canadian teacher jailed in Indonesia is acquitted, Canadian Press
Vancouver police raid marijuana store, Canadian Press
CALGARY — Supreme Court Chief Justice Beverley McLachlin says she has no concerns about newly appointed Justice Russell Brown’s past political writings before his appointment to the bench.
|'I welcome a robust debate about the role of the court and how we do our job,' said Chief Justice Beverley McLachlin this morning at the CBA meeting. (Photo: Glenn Kauth)|
McLachlin pointed to Brown’s previous role as a legal academic and said it’s common for people to express their opinions before their appointment to the bench.
“He comes to the court with a rich background as a practitioner and law professor,” McLachlin said in her remarks to the CBA council as its annual conference gets underway.
At the press conference, McLachlin also addressed recent commentary that the top court often acts as a type of unofficial opposition to the federal Conservative government.
“I leave the labels to other people,” she said, suggesting the court’s role is to answer the questions put to it in accordance with the law.
“I welcome a robust debate about the role of the court and how we do our job,” she added.
But asked whether she accepts the label as an unofficial opposition, McLachlin was categorical.
“Of course not,” she said. “I’m a not a politician. I’m a judge.”
In her remarks to the council this morning, McLachlin said the top court had had a “productive year.” Citing its busy caseload, she noted some of the key cases it had dealt with, including the Carter v. Canada (Attorney General) matter that dealt with assisted suicide.
She also touted improvements at the Canadian Judicial Council, including providing more detailed information to complaints about the review of the matter; streamlining the conduct review process; and inviting laypeople to participate on review panels that decide whether to refer a complaint to an inquiry committee.
Besides McLachlin’s remarks, the CBA council began considerating a number of resolutions. Several of them dealt with aboriginal matters, including a call to boost the independence of the Specific Claims Tribunal following recent changes by the federal government.
Another key concern arose in a motion dealing with increased difficulty in access to counsel by inmates due to restricted visiting hours, limited phone time, and an inability by lawyers to see clients once they arrive at institutions.
“The conditions really are getting worse and worse,” said Michael Jerch, chairman of the CBA’s national aboriginal law section.
Another issue dealt with lawyers’ concerns about the overuse of and lack of law around solitary confinement in prisons.
“Generally speaking, it’s in a very vague type of realm,” said Bibhas Vaze, a Vancouver lawyer who moved a resolution calling for the CBA to urge governments to pass legislation and policies to restrict and regulate the use of solitary confinement.
The CBA council continues today with additional resolutions around matters such as doctor-assisted suicide and remarks from Janet Fuhrer, the association’s incoming president.
Lead prosecutor in Oland case steps down, Canadian Press
Man arrested in Halifax shooting death, Canadian Press
In what lawyers are calling an “extremely rare” move, the Ontario Court of Appeal has expressly overruled one of its own past decisions.
|‘To expressly overrule a former decision is extraordinary,’ says James Morton.|
“As an intermediate court of appeal, we are ordinarily bound to follow our past decisions, even decisions with which we disagree. It is important that we do so. Our common law legal tradition rests upon the idea that we will adhere to what we decided in the past. As expressed by the Latin phrase stare decisis, we stand by things that have been decided,” wrote Justice Robert Sharpe in a ruling earlier this week.
But, Sharpe said, in this case, the faulty jurisprudence, from 1953’s Newman and Newman v. Terdik, isn’t logically consistent with “a steady string” of decisions that found an owner of a motor vehicle who consents to the possession of their vehicle by someone else will be vicariously liable for the negligence of the other person even if there is a breach of a condition imposed by the owner about the use or operation of the vehicle.
In a starkly different stance, Newman had found consent to possession does not translate to consent to operate a vehicle if the owner has placed restrictions on the operation of their vehicle.
“There comes a point at which the values of certainty and predictability must yield to allow the law to purge itself of past errors or decisions that no longer serve the interests of justice,” Sharpe wrote. “Moreover, decisions that rest on an unstable foundation tend to undermine the very values of certainty and predictability that stare decisis is meant to foster.”
It’s so rare for the appeal court to overrule itself that civil litigation lawyer James Morton says he’s only come across a similar move two or three times over the last 20 to 25 years.
“To expressly overrule a former decision is extraordinary,” says Morton. “The court of appeal often overrules earlier decisions without saying they’re doing it; they just kind of narrow the case or say, ‘Well, that’s not what it really means,’ but in this particular situation, it was black and white.”
Adds Morton: “The court was correct to overturn [Newman], I don’t have a problem with that, but it’s an extremely rare situation.”
While the Supreme Court of Canada more freely overrules its own decisions, as it did recently in R. v. Bedford, appellate lawyer Allan Rouben says it’s unusual for an intermediate court to do so. Still, Rouben says the court in this case made “a very well-reasoned decision.”
“It goes through the circumstances in which it’s appropriate to consider overruling, and here they found that the virtues of certainty and predictability were...outweighed by the other considerations,” he adds.
Part of the court’s unspoken motivation could have been that it’s difficult to obtain leave to the top court on an issue as narrow as the one considered in this case, says Morton.
“So if the Court of Appeal didn’t overturn Newman, it just would never get overturned.”
B.C. group seeks more information from CSIS as hearings begin, Canadian Press
When bringing a motion to set aside default judgment defendants better have good evidence and respond quickly, according to a recent Ontario Superior Court decision.
In Marina Bay Sands Pte, Ltd. v. Jian Tu aka Tu Jian, Justice Sean Dunphy wrote on Aug. 7:
The Superior Court is not a sandbox playground where ‘do-overs’ can be expected on demand. The stakes are high and this is no time to keep powder dry. If there is any reason the judgment ought not to stand, any and all reasons must be diligently and properly placed before the court.”
In the Marina Bay case, the defendant, Jian Tu, created a claim to set aside default judgment on what Dunphy called “two slender straws” — a procedural argument based on the exclusive jurisdiction clause in the underlying contract in favour of Singapore laws and courts, and a “bald, second-hand assertion” of failure to receive the statement of claim by means of the substituted service authorized by an order of the court.
Tu brought a motion to set aside the default judgment dated June 28, 2014, and to strike the statement of claim or for leave to file a statement of defence.
Marina Bay, a Singapore hotel, issued the statement of claim on Feb. 18, 2014, for amounts owing under a credit agreement between it and the defendant. The amount claimed was the Canadian dollar equivalent of SGD $9,940,683, plus prejudgment interest arising from advances made in February 2013 that the defendant had failed to repay.
The debts arose from markers given to support gambling at the plaintiff’s casino. A credit history obtained by the plaintiff showed Marina Bay was not the only casino the defendant has obtained credit from — there was a list of other casinos in Ontario and abroad.
Marina Bay had difficulty serving the statement of claim. Three unsuccessful attempts at service were made between March 6 and March 15, 2014, at an address in Markham, Ont. The process server received no reply.
Several other attempts were made to the same address.
On June 28, 2014, default judgment was obtained in the amount of the Canadian-dollar equivalent of SGD $11,127,028.62 plus $2,000 for costs, both amounts bearing post-judgment interest at the rates of 13 per cent and three per cent respectively.
Marina Bay proceeded to register writs of seizure and sale on July 21, 2014, and made a number of attempts to serve the judgment upon Tu via regular and registered mail and courier on several dates from July 23, 2014 to Jan. 2015.
Tu claimed he did not reside at the Markham property during the time the statement of claim was said to be delivered.
The case raised the following issues to be determined:
a) Is the existence of an “exclusive jurisdiction” clause in the contract underlying the default judgment sufficient grounds to warrant setting aside a default judgment?
b.) Does a bare hearsay allegation that the defendant failed in fact to receive a copy of the statement of claim warrant the exercise of the court’s discretion to set aside default judgment under Rule 19.08(1) of the Rules of Civil Procedure?
Dunphy said he did not accept “the evidence that the defendant in fact had no notice of the claim.”
He noted that Marina Bay has been unpaid for almost three years on its liquidated claim, and “had to engage lawyers in Ontario to track down the defendant and has now found property that he owns and has secured a judgment.”
Bald, hearsay statements to that effect which have been made without explanation of the circumstances carry little weight in these circumstances. . . . Secondly, there is a great distinction to be drawn in my mind between an irregularly obtained default judgment and a properly obtained judgment following substituted service in accordance with a validly-obtained order of the court. In the latter case, the judgment is regular. While the interests of justice may well favour setting such a judgment aside if credible evidence is led to establish that the alternative to personal service employed was actually ineffective, such is not automatically the case. Even if I accepted the defendant’s assertion (which I do not), the defendant would have still to explain his delay in responding to the judgment and to provide the court with some indication that he has a bona fide defence on the merits."
Dunphy dismissed the motion with costs.
Owen Sound teen charged with 21 counts of arson, Canadian Press
The Ontario Court of Appeal has rejected the superintendent of financial services’ bid to provide greater security for pension provisions during the restructuring proceedings of an Ontario wood manufacturing company.
The case once again raised questions about the deemed-trust provisions in Ontario’s Pension Benefits Act that the superintendent argued works in combination with the Personal Property Security Act to create a priority over the claims of secured creditors during Companies’ Creditors Arrangement Act proceedings.
“The Superintendent submits that the CCAA judge erred in concluding that no wind up deemed trusts arose during the CCAA Proceeding,” wrote Ontario Court of Appeal Justice Eileen Gillese in setting out one of the key issues in Grant Forest Products Inc. v. The Toronto-Dominion Bank on Friday.
“He contends that where a pension plan is wound up after an initial order is made under the CCAA, but before distribution is complete, unpaid contributions to the pension plan constitute a wind up deemed trust under the PBA.”
The case dealt with Grant Forest Products, a manufacturer with facilities in Ontario, Alberta, and the United States. It sought protection under the federal restructuring act after GE Canada Leasing Services Co. applied for a bankruptcy order against it in 2009.
During the ensuing years, the company sold off the bulk of its assets and was able to pay off its first lien lenders in full in January 2012. But there was little left for the second lien lenders and growing deficits in the pension plans for both salaried employees and executives.
In early 2012, the superintendent ordered the wind up of both plans with an effective date of June 10, 2010, for the executive plan and March 31, 2011, for the salaried plan. Later that year, Grant Forest Products and related companies brought a motion for a declaration that they no longer had to make contributions to the pension plans.
In the meantime, one of the creditors, West Face Capital Inc. sought to petition Grant Forest Products into bankruptcy. In 2013, former Ontario Superior Court justice Colin Campbell issued a transition order adjudging the companies to be bankrupt. The order stated that none of the companies’ funds were subject to a deemed trust under the Pension Benefits Act.
In deciding whether Campbell had erred, the appeal court returned to a familiar them: federal paramountcy under the Bankruptcy and Insolvency Act. “As I have explained, at the time that the Motions were heard, it was open to the CCAA judge to order the Remaining Applicants into bankruptcy,” wrote Gillese.
“Once the CCAA judge exercised his discretion and made that order, the priorities established by the BIA applied to the Remaining Funds and rendered the wind up deemed trust claims inoperative.
“Because wind up deemed trusts are created by provincial legislation, their payment could not be ordered when the Motions were heard because payment would have had the effect of frustrating the priorities established by the federal law of bankruptcy.”
As part of Friday’s ruling, Gillese included some comments about the merits of Companies’ Creditors Arrangement Act proceedings versus the bankruptcy process when it comes to pension funds. As she noted, all pension contributions continued to the plans during the bulk of the restructuring proceedings. Second, she pointed out that the company that bought some of the assets continued one of the pension plans. And third, she said the restructuring proceedings bought the company “breathing space” to ensure proper administration of the pension plans with orders authorizing the monitor to hold back some funds for pension claims.
“I hasten to add that these remarks are not intended to suggest a lack of sympathy for the position of pension plan beneficiaries in insolvency proceedings,” wrote Gillese.
“Rather, it is to recognize that while no panacea, at least there is some prospect of amelioration of that position in a CCAA proceeding.”
While the appeal court rejected the superintendent’s position, Andrew Hatnay, a partner at Koskie Minsky LLP who acted for an intervener in the case, says he was very happy with the decision.
While “it certainly disadvantages the Grant Forest pension plan members,” the decision was a narrow one that doesn’t create new law, says Hatnay, whose clients include non-union active employees and retirees of U.S. Steel Canada Inc. in its own restructuring proceedings.
The appeal court, he adds, dealt with the narrow issue of whether Campbell had erred in granting the bankruptcy application.
“Timing is always critical in CCAA proceedings,” he says.
“The courts have always made clear that creditors should make the rights on which they intend to rely known early in a CCAA proceeding.”
As for the court’s comment on the advantages of the restructuring legislation in general, Hatnay says he largely agrees. “Generally, we agree with the courts’ comments because the CCAA permits greater flexibility than a bankruptcy proceeding and encourages stakeholders to reach resolutions and settlements,” he says.
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