Legal Feeds Blog
Ontario Ombudsman Andre Marin’s annual report cites “recurring concerns” around the way the Ministry of the Attorney General’s Office of Public Guardian and Trustee treats its vulnerable clients.
Marin’s report says his office received 142 complaints about poor customer service and communication from the office, which manages the financial affairs of people who don’t have the capacity to do so themselves or have anyone else who is authorized to act on their behalf.
“For example, a long-time OPGT client received a payment of almost $33,700 from an insurance company, as reimbursement for 20 years of underpayments. Not only did the OPGT not inform her about the money, it withdrew $15,500 from her account as compensation for being her financial guardian for 13 years,” says the report released this week.
“The OPGT is able to collect payment for guardianship if clients are able to pay. However, it can defer payment if a client is unable to pay — a fact that it did not advertise. The woman had repeatedly asked the OPGT for information about her finances and did not receive adequate information about the additional funds or the deferred compensation until our office intervened,” it says.
At ARCH Disability Law Centre, executive director Robert Lattanzio says the complaints included in the report are all too familiar. A lot of the clinic’s work around capacity comes from clients who have difficulty accessing services at OPGT, Lattanzio says.
“As I read through the report by the ombudsman, I think our experiences are quite in line. We’ve actually also engaged the ombudsman on some files where we felt we were getting nowhere,” he adds.
At times, the problem is that information is not communicated in an accessible format to clients, says Lattanzio,
“That’s a serious issue we find for a lot of our clients.”
Other times, people have simply been unable to get through to a representative at the OPGT and, as a result, defaulted on payments in their day-to-day lives, Lattanzio adds.
“At the heart of this is something so fundamental — it really is about a person’s autonomy,” he says.
“When someone is under the OPGT, they’ve basically been removed from something we all take for granted. We’re talking about a government body managing property, managing finances on behalf of someone, so we can imagine in our own lives if we don’t have control over that.”
According to Marin’s report, although complaints about the OPGT have dropped by 21 per cent from last year, the kind of concerns complained of has remained the same.
“We have also raised concerns about repeated cases where the OPGT has failed to take appropriate action on behalf of its clients to obtain benefits from other government programs,” says the report. “In one case, it did not submit the necessary transportation allowance forms to the Ontario Disability Support Program (ODSP), causing a woman to lose out on that allowance for 14 months. After Ombudsman staff looked into this, the OPGT agreed to reimburse her $1,799.”
The Ministry of Attorney General did not responded to a request for comments on the report by posting time.
Lattanzio says his impression is there aren’t enough representatives at the OPGT to adequately serve the volume of clients.
Marin’s report also cited other justice-related concerns. In 2014-15, his office received 3,904 complaints about correctional facilities, a slight increase from last year’s 3,839.
The Toronto South Detention Centre, a “superjail” that opened last year, was the subject of 422 complaints, the report says. Those complaints included concerns about “inadequate health care and sick inmates being housed in segregation cells while all four of the facility’s medical units stood empty.”
“In two especially serious cases, we intervened to ensure that inmates who had undergone major surgery could get to an infirmary to receive proper care. The inmates were in severe pain and had been left in segregation cells without adequate medical services,” according to the report.
The ombudsman’s office also saw a sharp increase in complaints regarding segregation placements. It says it found cases where inmates were kept in segregation for months at the time without the benefit of requisite periodic reviews. The report says in the past year, at least three segregated Ontario inmates are believed to have taken their own lives.
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As Legal Aid Ontario expands eligibility for legal aid, it says it will provide new funding to clinics based on the needs of the particular areas they serve.
Today LAO announced it will provide $1.5 million in funding to support legal clinics serving areas with the most number of people living in poverty. The funding is on top of $2.4 million it provided to clinics for the 2014-15 fiscal year, legal aid says, adding it will allow clinics to hire more staff, expand existing services, or launch new services that support clients.
The need-based allocation of funds means so far, clinics like Kensington-Bellwoods Community Legal Services Toronto have seen no increase in funding while the Community Legal Clinic of York Region is getting a 65 per cent boost in financial support.
The allocation strategy recognizes the inequalities in funding to clinics over the years as poverty changed its postal code, says Cynthia Harper, LAO’s director general for the Toronto central district.
“Poverty has moved,” Harper says. “The money is being allocated where the greatest need is.”
In the GTA, this means funding will follow poverty in areas such as Scarborough, Brampton, Etobicoke, North York and Mississauga, according to Harper.
As poverty moved, “Some clinics were finding that they had to serve this great number of people but they didn’t have the same financial resources per low-income person,” says Genevieve Oger, spokeswoman for legal aid. “So legal aid has opted to increase the financial resources of clinics that have the fewest resources per low-income person.”
To determine funding per low-income person in clinics’ service areas, legal aid says it is using Statistics Canada's low-income measure data from 2012 as well as its own funding and population data.
While not every clinic has seen a boost in its funding, Harper notes all legal clinics are eligible to apply for $2.4 million in funding available for joint and co-operative initiatives among legal clinics.
The funding to clinics follows $95.7 million in increased government support for legal aid over three years.
“Thanks to the Ontario government’s move to increase access to legal aid, Legal Aid Ontario can invest in new services for low-income people,” said John McCamus, chairman of LAO. “Ontario's clinics are the foundation of poverty law in this province and we are committed to helping them meet the needs of their communities."
Lenny Abramowicz, the executive director of the Association of Community Legal Clinics of Ontario, also lauded today’s announcement of additional funding.
“Ontario’s community legal clinics, and the communities they serve, welcome this investment of additional funding,” he said. “We applaud the provincial government for its ongoing commitment to improving access to justice, and we look forward to working with Legal Aid Ontario on expanding the availability of community legal services across the province.”
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In what many are calling a controversial and conservative choice, Prime Minister Stephen Harper has appointed Alberta judge Russell Brown to the Supreme Court of Canada, replacing Justice Marshall Rothstein.
|Justice Russell Brown at his swearing in at the Court of Queen's Bench of Alberta in February 2013.|
“I’m a fan,” says Craig Jones, professor of law at Thompson Rivers University in Kamloops, B.C. “I think it’s a great long-term appointment.”
Brown, a former associate dean at the Faculty of Law at the University of Alberta, was a guest lecturer at TRU in February. Jones and Brown share an academic interest in what Jones calls “the very sticky field of causation in tort law.”
Associate professor Margaret Hall of the Faculty of Law at Thompson Rivers University called Brown “a truly outstanding scholar.”
“I have known Russell Brown since young and carefree undergraduate days at UBC. To my delight, we both grew up to become torts professors and became re-acquainted with each other in that professional and intellectual capacity,” she says.
While there’s some criticism that Brown has been a judge for just 2.5 years, others note he’s not the first to have an expedited path to the SCC.
Chief Justice Beverly McLachlin was appointed at the age of 45 (Brown is 50), and both with experience from private practice and academia, says Eugene Meehan of Supreme Advocacy LLP in Ottawa and a former executive legal officer at the SCC.
“With the court’s current workload mainly criminal, he will adjust, but his academic experience of critically analyzing and writing about the law will serve him well,” says Meehan.
He adds Brown’s time as an associate dean will help him in terms of “building relationships and putting out fires.”
University of Alberta law school professor Peter Sankoff says Brown’s varied background will benefit the SCC.
“Anytime someone makes a rapid rise to the Supreme Court there’s always controversy and it’s not unprecedented,” says Sankoff. “Sometimes having someone who has done a lot of different things and then moves to the judicial ranks in a short time can bring different perspectives to the bench.”
Sankoff, a professor and author of criminal law, wouldn’t comment on whether Brown has “conservative” leanings, saying rather he sees him as “a guy with an open mind.”
“I’ve read a lot of his decisions on the bench and I’m reluctant to peg him as an ideologue of one sort or another,” he says. “What surprised me was how rigorous and well thought out a lot of his criminal law decisions [are]. It doesn’t’ mean I agreed with every one of them but at the end of the day I couldn’t deny they were well thought out.
“He is a hard working guy. I think he has a strong will and strong thought about things but I know he’s open.”
Brown was appointed to the Court of Appeal in Edmonton last year after just 13 months on the Court of Queen’s Bench. He also serves as a judge of the Court of Appeal for the Northwest Territories and a judge of the Court of Appeal of Nunavut. He previously served on the Court of Queen’s Bench of Alberta.
Before being appointed to the bench, Brown served as an associate professor and associate dean at the University of Alberta Faculty of Law. He was also associate counsel with Miller Thomson LLP in Edmonton and practised at Carfra & Lawton LLP and Davis & Co. (now DLA Piper LLP) in Vancouver.
Brown’s appointment has also raised eyebrows in part due to his connection as an adviser in 2012 to the Justice Centre for Constitutional Freedoms, a conservative legal group.
“He was a very well regarded lawyer and he is an excellent teacher,” says Jones. “What makes him a great judge is he is an extremely down to earth, pragmatic, very human guy and he brings that, notwithstanding people’s concerns about this or that connection to the JCCF.”
Sankoff says judicial labels get thrown around a lot and there are different types of conservatives. His view is Brown has a “healthy respect for judicial precedent” which he says is the traditional view of a conservative.
“He has a healthy respect for the rule of law and precedent and that’s a welcome trait to add to the Supreme Court. That is what conservative used to mean. That can be both good and bad.”
Jones predicts Brown will be “leading some advances in less spectacular but very important areas of the law” such as tort law.
“While it [tort law] hasn’t been neglected, the approach of the Supreme Court of Canada has been tentative and inconsistent. I think he has a very strong understanding of the sort of ebbs and flows of the tort jurisprudence and a way of harmonizing it into a concept that serves social objectives and maintain some intellectual integrity,” he says.
“He has a really good way of boiling things down to common ideas and looking through threads of cases for some sort of conceptual integrity and often nails it.”
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Fresh off a victory in having a disciplinary hearing go ahead against an Edmonton officer alleged to have improperly targeted a local defence counsel, two lawyers have launched a complaint against a sergeant whose text messages to his colleague played a key role in the case.
“I do think it’s a big deal when lawyers are getting arrested because they’re not well-liked by the police,” says Erika Norheim, who’s counsel for Chady Moustarah, the defence lawyer allegedly targeted by police, and Aleksandra Simic, another lawyer present at the time of the 2011 incident.
In the latest development, Norheim has filed a complaint on Simic and Moustarah’s behalf against Edmonton Police Service Sgt. Dana Donald, who was among a group of lawyers gathered at a lounge in Edmonton on April 9, 2011.
According to the complaint sent to police Chief Rod Knecht this month, Donald sent a text message that day to Const. Adam Woodburn advising that Moustarah had been drinking and was about to drive away from the lounge. Woodburn had arrested and charged Moustarah with obstruction of justice a few years earlier for giving someone advice on his right to silence. The Crown had stayed that charge in December 2009.
After getting Donald’s text messages, Woodburn, who was working undercover at the time, tracked down Moustarah at another venue, arrested him, and took him to a police station for a breath test. He didn’t administer a roadside alcohol-screening device and ultimately chose to forgo the breath test at the station. Instead, Woodburn issued the lawyer a roadside licence suspension under the Traffic Safety Act.
In 2014, Knecht dismissed a complaint about Woodburn’s actions. Simic appealed to the Alberta Law Enforcement Review Board, which earlier this month ordered police to conduct a disciplinary hearing on charges of unlawful or unnecessary exercise of authority and discreditable conduct.
Now, Moustarah and Simic are complaining that Donald’s actions in 2011 amount to engaging in corrupt practice.
“Sgt. Donald did not, and could not, have sincerely believed that Mr. Moustarah was driving while intoxicated,” Norheim wrote in the complaint. “Rather, we submit that it is apparent that Sgt. Donald made these statements to Cst. Woodburn to tease or otherwise provoke Cst. Woodburn rather than because he held a sincere belief that Mr. Moustarah was about to commit a criminal offence. . . .”
The complaint cites the fact there was no suggestion Donald made any attempt to see if regular patrol officers were available to make a traffic stop rather than someone working undercover, such as Woodburn.
“The personal advantage in this case was for Sgt. Donald’s own entertainment or amusement or, alternatively, retribution on the part of Cst. Woodburn,” wrote Norheim, citing Donald’s alleged motivation.
The letter notes that during an interview, Donald expressed an opinion that Moustarah had had four or five drinks that evening. Woodburn, however, had at one point said Donald told him in the text messages Moustarah had had six drinks.
“If Sgt. Donald did indeed inform Cst. Woodburn that Mr. Moustarah had consumed six drinks, this would amount to ‘deceit’ . . . as it was a false, misleading or inaccurate statement made willfully or negligently,” wrote Norheim in the complaint.
Norheim says there are other troubling aspects to the case, including what she alleges was the apparent destruction of the text messages exchanged between the two officers.
“Woodburn was never even asked for them.”
She notes in her letter she was able to proceed with the more recent complaint following information revealed in Knecht’s disposition letter on the complaint against Woodburn in 2014 and says another set of allegations are in the works over what happened to the text messages.
She says in regards to information received as part of the record in Simic’s appeal to the Law Enforcement Review Board, she believes she’s no longer subject to an implied undertaking and can move forward with the additional complaint now that the appeal body has released its decision.
Norheim says the case is reminiscent of the famous Overtime case in Edmonton in which police officers landed in hot water for attempting to target a local newspaper columnist and the chairman of the police commission in an impaired driving sting. The incident led to a series of lawsuits, disciplinary hearings, and appeals.
“It’s very similar to Overtime,” says Norheim, saying the case involving Moustarah and Simic has flown under the radar.
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A Brampton, Ont., lawyer and former MPP has voluntarily surrendered his licence to practise after admitting in a disciplinary hearing to professional misconduct.
An order summary released last week by the Law Society Tribunal granted John Carman McClelland “permission to surrender to the law society his licence to practise law in Ontario.” The tribunal also ordered him to pay costs of $10,000.
According to the order summary, the tribunal found McClelland had, among other things, borrowed money from clients, including a loan of $25,000 from the mortgage proceeds of a client; filed annual reports that were misleading or inaccurate; failed to serve clients in mortgage transactions and the purchase of a commercial property; misapplied funds and mishandled money held in trust for clients; failed to keep proper records; and failed “to be on guard against becoming the tool or dupe of unscrupulous clients and/or third parties while acting for the vendor on a sale transaction.”
In the agreed statement of facts filed with the tribunal, McClelland “admits that these facts establish that he engaged in professional misconduct.”
“There was an agreement by Carman that he had made a number of errors and there was a joint position on penalty that was accepted by the panel,” says McClelland’s lawyer, William Gilmour. “It was an appropriate resolution under all the circumstances.”
According to an article in the Brampton Guardian, McClelland’s licence was already suspended earlier this spring, when more allegations against him surfaced, including “an accusation from Bank of Montreal surrounding a $437,000 cheque the financial institution suspects was ‘counterfeit’, and a complaint lodged by McClelland’s sister, who accuses her brother of taking advantage of their ailing mother.”
McClelland, according to the article, has called those accusations “absurd and defamatory” but didn’t contest the proceedings that resulted in the suspension of his licence.
That suspension, Gilmour says, was on an interlocutory basis and not on a finding of culpability.
Leslie Maunder, who represented the law society during the hearing, said the law regulator would have suggested suspending McClelland’s licence for two years if he hadn’t given it up voluntarily.
McClelland, according to Gilmour, has also been struggling with crippling mental-health issues.
“He suffered some psychological torment and paralysis which interfered with his ability to practice law and he has taken an opportunity to carry on and heal himself as he gets on with the rest of his life,” he says.
McClelland was an MPP for the Liberals from 1987 to 1995, representing Brampton North. In 2007, he ran unsuccessfully as a Progressive Conservative candidate. He was named president of the Brampton Board of Trade in 2008.
According to the agreed statement of facts, McClelland was born in Angola and raised in Brampton. He worked for 10 years as a counsellor for youth in conflict with the law before obtaining his law degree at the University of Windsor.
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