Smith v. Cataraqui Cemetery Co., Ontario Superior Court

Can the heirs of a family that bought a massive plot on a cemetery in the 1860s get buried there now? The cemetery said no, saying they'd first have to go through all potential heirs (thousands of them) to see who gets the plot. The court said that was ridiculous.

---

If you’re a lawyer or judge who has Aboriginal law experience and looking for new challenges, this may be the job for  you.

After five years on the job, Daniel Ish, chief adjudicator of the Indian Residential Schools Adjudications Secretariat, is stepping down and a search has begun for his replacement.

A request for proposals was issued April 29 seeking individuals interested in applying for the chief adjudicator job that oversees the Independent Assessment Process, which makes decisions on individual claims of abuse related to the Indian residential schools system.

The chief adjudicator directs the work of the Indian Residential Schools Adjudications Secretariat, the administrative body that manages the IAP hearing process.

The chief adjudicator position became vacant earlier this year when Ish, announced he would step down once a replacement is found.

“We are very fortunate to have had someone as dedicated as Daniel to guide the IAP through its first five years,” says University of Toronto law dean Mayo Moran, chairwoman of the oversight committee that monitors the implementation of the IAP. “I have been struck by his deep commitment to protecting the integrity of the IAP so that former students receive a fair hearing in a safe and caring environment.”

There are over 100 adjudicators who hear the individual claims for abuse arising out of the Indian residential schools and the chief adjudicator oversees the independent assessment process. The total number of applications the secretariat received was 37,716, and it has resolved over half of them, with 17,303 (full stats available here) awaiting resolution.

Moran says the job requires “a complex mix of legal and adjudicative experience and good judgment.”

Occasionally the chief adjudicator also writes some decisions on review cases.

“There are also political and diplomatic skills required,” says Moran. “We were incredibly lucky — Dan Ish is absolutely wonderful and we’re all feeling a bit bereft that we’re losing him because it was wonderful to have someone with such a great mix of human skills and professional qualities during this really important first six years.”

The selection of a new chief adjudicator will be managed by the IAP oversight committee, which includes representatives of former Aboriginal students and their counsel, churches, and the federal government.

A selection committee will review applications, conduct interviews, and make a recommendation. The committee’s selection must be approved by the Supervising Courts of the Indian Residential Schools Settlement Agreement.

Applicants for the position must have a law degree with at least 15 years at the bar, experience as a member of the judiciary or in the adjudication of claims, and have significant knowledge of Canadian Aboriginal people and their history, culture and current issues. The mandatory and rated requirements for the position are outlined on MERX. The deadline is May 24.

The new chief adjudicator is expected to be in place by early this summer.

Update 3:45 pm: Clarify number of cases before and resolved by the secretariat.

Canada

Judge rules striking Alberta union in contempt, fines will escalate daily,The Globe and Mail

Brian Burke names 18 people in defamation lawsuit filed in B.C. Supreme Court, Toronto Star

Changes to foreign workers program expected today, The National Post


United States

BP hit with over 2,000 new lawsuits as April deadline approaches, Reuters

Publishing house shells out $26M to settle antitrust class action, Reuters


International

Former president banned from elections for life: Pakistani court, Reuters

Libyan justice ministry surrounded by gunmen in bid to pressure lawmakers, Reuters

The Canadian government announced tighter rules on Monday to prevent employers from using its temporary foreign worker program to squeeze Canadians out of jobs, acting after two high-profile cases tarnished the program’s reputation.

Immigration Minister Jason Kenney answers questions about the Temporary Foreign Worker Program during Question Period. (Photo: Chris Wattie/Reuters)

The new rules will prevent employers from paying foreign workers less than Canadians, and will ensure employers who rely on temporary foreign workers have a “firm plan” in place to transition to a Canadian labour force.

However, nothing in the government announcement suggested the government will prevent fast-food restaurants and others from using the program to hire low-skilled workers, a practice that labour unions say must stop.

“These reforms will require that greater efforts be made to recruit and train Canadians to fill available jobs,” Citizenship and Immigration Minister Jason Kenney said in a statement.

“They will also help ensure the temporary foreign worker program is only used as intended — to fill acute skills shortages on a temporary basis.”

Canadian unemployment is seven per cent nationally, but there are labour shortages in some areas and in some professions, and employers that demonstrate they cannot find enough Canadian workers are allowed to bring in foreign workers.

The program was designed mainly to bring in cheap agricultural workers. But it has expanded rapidly to fill shortages elsewhere, both high-skilled positions in the booming resource sector and low-skilled fast-food jobs.

Bank of Canada Governor Mark Carney weighed into the debate last week by saying the program should be used primarily for high-skilled jobs and over-reliance on it for low-skilled jobs can prevent needed market adjustments through higher wages.

Alberta Federation of Labour President Gil McGowan told a news conference what was really needed was to stop bringing in unskilled workers, and that pizza and burger shops cannot find Canadian workers because they don’t pay enough.

“The solution is to increase wages, not to open the flood gates through the temporary foreign worker program,” he said, adding it was ironic that a pro-free-market Conservative government was effectively depressing wages.

Opposition New Democratic Party leader Thomas Mulcair told Parliament: “Their message is still work for less, or you’ll be replaced.”

The program exploded into the news this month with word Canada’s largest bank, Royal Bank of Canada, was using temporary foreign workers hired by U.S. outsourcing firm iGate, effectively to replace existing staff.

In an open letter, RBC Chief Executive Gord Nixon subsequently apologized for not being more sensitive to Canadian employees. But he also said the bank had complied with regulations, and iGate said its hiring practices were fully compliant with Canadian law.

The program also came under the spotlight with word last year that a majority Chinese-owned company had listed Mandarin as a language requirement for 201 jobs at the Murray River coal mine in the interior of British Columbia.

The company involved is HD Mining International Ltd, in which China’s Huiyong Holdings Ltd. holds a 55-per-cent stake, Canada’s Dehua Lvliang International Mines Group Inc. 40 per cent, and an unnamed party five per cent. nHD Mining said last year it had tried to hire locally but had been unable to find people with the skills to operate the specialized mining equipment, currently used in China, that will be used at the Canadian mine.

The government addressed that HD Mining controversy with a new rule that English and French will now be the only languages that can be used as a job requirement.

It will also introduce fees for employers for processing the paperwork needed to authorize temporary foreign workers, and will add questions to ensure the program is not used to facilitate the outsourcing of Canadian jobs.

Can Canada create a fair and inclusive justice system while ignoring many of the root causes driving cases to court?

That was a key question at a session of the three-day Envisioning Equal Justice summit in Vancouver last week.

“There is a desire in a cohesive community to work together for a successful justice system which is inclusive and for a collective response that creates an environment for that and leaves no one behind,” said B.C. Provincial Court Chief Justice Thomas Crabtree during the opening session.

He pointed to some B.C. programs and dedicated courts that have started the process of being part of the response by addressing not just the offence but also working towards engaging the community to address the causal link behind factors such as addiction, mental health, and homelessness.

In order to understand the collective response needed, lawyers engaged in a poverty simulation exercise hosted by Heather Block, director of strategic initiatives for the United Way in Winnipeg. Her organization purchased a kit in the fall of 2012 from a Missouri organization, adapted it to reflect the Canadian situation, and created family groups of role players who must deal with the day-to-day issues of work, school, and paying bills.

About 130 lawyers took part in the exercise as they clustered into one, two or no-parent families. Around the meeting room were institutions such as work, school, banks, welfare, child-care centres, food store, clothing store, police stations, pawn shops, employment offices, and legal aid.

Each family had a play scenario such as monthly bills to pay, possessions, and a certain amount of cash on hand or in the bank. The groups play out a month of managing their budget spread over four 15-minute sessions. However, to go to any place but school, they need a transportation pass. Some families didn’t have the passes needed to get to work, go to agencies or stores or simply look for a job.

Early in the exercise, the police started picking up youth who weren’t in school or were wandering about or left at home unsupervised as single parents, unable to afford childcare, had gone off to work. Parents lost time and pay at work as they had to deal with social services to retrieve their children. The jail starts to fill up. Long lines at welfare services, banks, and employment offices appeared.

“The transit ticket started my slide,” said Wayne Robertson, executive director of the Law Foundation of British Columbia, who played the role of a working parent but ran out of transit passes. Following his arrest for robbery, he wonders in jail if his family knows where he is and when they’re going to bail him out. “I’ve got rights, you know,” he said. Finally, the family arrives and pulls out piles of cash for bail.

At the end of the game, a number of families are facing eviction for not paying rent or mortgages. The homeless shelter is filling up. The majority of the families in the hour-long exercise are hanging by a thread financially.

“How many came out of it with more money than they started?” said Block, asking those to stand. More than a dozen groups stand, including Robertson and his family. Robertson isn’t sure how much money he’ll have after his trial date next month.

“If you got ahead doing anything illegal, sit down,” she told those standing.

There was a noticeable shift. Robertson’s group is among them. Only a handful of groups have come out of their mock lives better off.

Block isn’t surprised. The exercise parallels what individuals short of money with pressing financial needs do. “If you are living on the edge, there are not many options and people will try to get around the system,” she said.

Jamie Maclaren, executive director of the Access Pro Bono Society of British Columbia, said the simulation provided only a brief glimpse of what those on low incomes experience. His organization receives requests for assistance from approximately 25,000 people and helps only 8,000. “We turn away a whole slew because they do not qualify,” he said.

One of Ontario’s most prolific judges in class actions cases is moving to the Ontario Court of Appeal.

Ontario Superior Court Justice George Strathy, one of a handful of judges to regularly tackle the complex and often drawn-out area of class actions, replaces appeal court Justice Russell Juriansz, who became a supernumerary judge on March 31.

Strathy, who joined the Superior Court bench in 2007, had a long career as a practising lawyer in civil litigation as well as transportation, insurance, environmental, and maritime law. He had earlier been a partner at Strathy & Isaacs, Fasken Campbell Godfrey, and MacKinnon McTaggart.

Moving into Strathy’s spot at the Superior Court is Stephen Firestone. As a lawyer, Firestone primarily dealt with civil litigation focusing on personal injury, accident benefits, and professional negligence. He has been a partner at Lackman Firestone since 1995 and earlier worked as a lawyer at Iacono Brown and Sommers & Roth.

Also joining the Superior Court bench is Ontario Court Justice Steve Coroza. Currently a judge in St. Catharines, Ont., Coroza will take his Superior Court position in Brampton, Ont., on July 8. He replaces Justice Nancy Mossip, who becomes a supernumerary judge on July 8. Coroza became a judge in 2009 following an 11-year stint as senior counsel with the Public Prosecution Service of Canada and an earlier position as staff duty counsel in Toronto.

The Ontario government also announced the appointment to the Ontario Court of Justice on Friday. Kathleen Baker will preside in Brantford, Ont., as of May 8. Baker, who has worked in a number of legal counsel roles for several children’s aid societies, has more recently been in private practice dealing with child protection, custody, access, support, and property issues.

Besides the Ontario appointments, the federal government named a new Quebec Court of Appeal judge on Friday. Superior Court Justice Manon Savard fills the vacancy caused by the departure of Justice Richard Wagner to the Supreme Court of Canada last year. Savard, who has been a judge since 2009, had an earlier career as a lawyer practising labour and employment, civil, and administrative law at the former Ogilvy Renault LLP.

The final appointment announced Friday was of Glennys McVeigh to the Federal Court. A senior counsel with the Public Prosecution Service of Canada in Saskatoon, McVeigh has been with the federal government since 1998. She fills a new position on the court.

Canada

Ottawa set to unveil sweeping changes to foreign workers program, CBC

Alberta tables new law to force oil companies to pay for environmental monitoring, The Globe and Mail

Province files injunction on 'illegal strike' as Calgary correctional officers list demands, Calgary Herald

B.C. appeals court finds anti-abotion protestors set out to 'test the law', National Post


United States

Phone recording of Goldman's Tourre can be used by SEC: judge, Reuters

Court gives final OK to $21-million compensation settlement in Merrill class action, Reuters


International

Cyprus to increase government transparency, limit presidential immunity from prosecution, Reuters

Swiss company Novartis sees second kickback lawsuit brought in four days, Reuters

Torys put on the ritz yesterday evening to formally celebrate the opening of its Montreal office under the stewardship of class action lawyer Sylvie Rodrigue.

Sylvie Rodrigue and Les Viner.

More than 100 people gathered together to fête the occasion in the legendary Oval Room with its hand-painted gilded touches at the Ritz-Carlton Montreal. Among the crowd were lawyers from Torys’ Toronto and New York offices, other big law firms in Montreal, clients, and representatives from the Quebec Bar and the Canadian Bar Association — where Rodrigue is chairwoman of the national task force on class actions. Justice Pierre J. Dalphond, a class action specialist who now sits on the bench of the Quebec Court of Appeal, was also in attendance.

Les Viner, managing partner of the firm founded in Toronto in 1941 by business lawyer John Stewart Donald Tory, took to the podium first, saluting Quebec jurisprudence and his own long personal association with the city he called “fun, worldly, and sophisticated.”

“We are here for good,” said Viner, speaking alternately in English and French as he explained Torys’ decision to open an office in Montreal “first to be closer to Quebec clients, second, to deliver litigation defence work with a single actual integrated legal team and legal strategy, and third, and most importantly, Quebec is very important.

“It is important to Canada, it is important in our clients’ businesses and it is important jurisprudentially,” said Viner. “Quebec’s history as a progressive and reform-minded jurisdiction makes it a leading indicator of evolving legal developments in our country.”

“So we need to be here, we are very glad to be here, and we feel very lucky that we found someone to head our new office who shares our values, who is a passionate lawyer, an inspirational leader and une fière Québécoise,” Viner said.

Torys held a ritzy gathering last night to launch its Montreal office.

Rodrigue, who oversaw the opening of the Montreal office in Place Ville Marie on April 2, following her nomination as Montreal managing partner in February, said she is building a team with lawyers not only called to both Canada’s common law and Quebec’s civil regime jurisdictions but having an active practice in both.

Two associates now working at the Montreal office are going to take the Ontario bar exams and three associates at the Toronto office are preparing for the Quebec bar exams, which will enable Torys to offer “seamless” service on multi-jurisdictional class action files, often filed simultaneously.

Rodrigue told Legal Feeds she will be at the Montreal office two days a week and will continue to commute to Toronto as she has for the past seven years as the former co-chair of the national class actions team at Norton Rose and its predecessor Ogilvy Renault, where she began her career as a stagiare 22 years ago.

“Paul brought me to Toronto and Les brought me to Montreal,” joked Rodrigue, referring to husband Paul Carenza, the tax group partner and former Ogilvy Renault lawyer now with Cassels Brock and Torys managing partner Viner.

“We are already very busy,” said Rodrigue, noting while at Norton Rose, she had already been handling some Quebec class action work for clients of Torys since the firm then had no office in Montreal. She said there is no specific plan for how big the Montreal office with its litigation focus will become. Torys’ Calgary office, which opened two years ago to complement offices in Toronto and New York, now has 25 lawyers.

LawPRO finished 2012 with a deficit of $2.9 million, according to financial statements presented at the Law Society of Upper Canada Thursday.

Distribution of claims by practice area. (Source: LawPRO)

The insurer attributed the loss to reduced premium rates and a “troubling, ongoing trend” when it comes to swelling claims figures.

“Claims costs are high and rising,” LawPRO said in its report, adding the number of claims reported to the Ontario insurer in the last year “increased significantly” to 2,560, a jump from less than 1,800 at the beginning of the decade.

In the same period, the average cost per claim also increased by $10,000. The median amount was pulled up by a growing number of severe claims, which cost greater than $100,000. While these exorbitant cases amounted to a claims expense in the $80- to $90-million range between 2007 and 2011, “the 2012 program’s ultimate cost is projected to exceed this range,” said LawPRO.

“The growth in claims is faster than the growth in lawyers and premiums,” said Susan McGrath, chairwoman of LawPRO’s board of directors and a law society bencher in presenting the report.

What McGrath called “Ontario-specific characters,” such as high cost of real estate and legal services also rack up claims expenses.

Not surprisingly, the real estate and litigation practice areas resulted in the majority of claims LawPRO received, amounting to 33 per cent of claims cost.

“Looking more closely at the underlying cause of claims by policy year, we are seeing a startling increase in types such as time management, as well as failure to either know or apply the law,” according to the report.

LawPRO currently has 3,500 open files, the highest number in the last decade. This is “despite a concerted and successful effort on the part of the company’s claims group to close more files than the previous year,” it said.

But LawPRO praised its work when it comes to its expanded online efforts to help lawyers avoid claims, particulary through its Avoid a Claim blog (http://www.avoidaclaim.com/). It also reported a survey result that showed 86 per cent of lawyers were satisfied with how the company handled their claims.

Last year, LawPRO won all six matters it took to trial and on which a decision was rendered. It was also victorious in both matters that went to appeal and succeeded in 18 out of 25 summary judgement applications.

LawPRO’s full report can be found here.

Canada

Harper government shows support for private bill that could mean 40 year sentences, The National Post

Contractor's lawyer seeks jail time for client who destroyed home, drained savings of elderly woman, Toronto Star

UN to question Canada on treatment of indigenous people, Calgary Herald


United States

Court rules commentary not needed for fair use defence in 'landmark' copyright ruling, Reuters

Appellate specialist on board to defend $400M antitrust verdict against Dow Chemical, Reuters


International

Venezuelan opposition leader to challenge election results in court, Reuters

Legal sanctions on Putin's opposition causes some to accuse him of 'Stalinism', Reuters