Legal Feeds Blog
In a case that raises questions about the professional obligations of an articling employer, a law student is suing Legal Aid Ontario and the Law Society of Upper Canada after being terminated two weeks into his term.
|Andrew Sudano says, in his experience, employers will stick it out with their articling students, even if problems arise.|
He claims the law society, too, was negligent in allowing the breach to occur.
Polanski’s lawsuit relies entirely on a provision within the Lawyer Licensing Policies that states “a Candidate or principal may terminate articles where problems arise between the candidate and the principal that cannot be resolved to the satisfaction of both the candidate and the principal.”
According to Polanski, Scharfe violated her professional duties by failing to specify “unresolvable issues.” Unfortunately for him, the statement of claim lacked any information about reasons for the termination.
Ontario Superior Court Justice Edward Morgan, reviewing a motion to strike the claims for lack of cause, seems utterly bewildered by the dearth of useful information.
“I do not know what happened to abort the Plaintiff’s articles,” writes Morgan in his decision. “One can read and re-read the rather brief Statement of Claim, but nothing will reveal why the Plaintiff was fired.
“To make a short story long, the pleading does not disclose what led to the unfortunate situation in which the Plaintiff now finds himself and what, if anything, he did to deserve having his career cut short at such an early stage. Nor does it reveal why his employer, LAO, dismissed him, what steps Ms. Scharfe as articling principal took or did not take culminating in the termination of his articles, or what LSUC as regulator did or did not do in response to this situation, etc.”
Morgan starts by striking out the claim against the law society. He suggests that Polanski has misunderstood the role of the law society as a professional regulator, and not a service administrator that can be held to account for failing to carry out its mandate.
In a clever analogy, Morgan says that “LSUC no more administers an ‘articling program’ or provides a ‘service’ for licensees than Canada Revenue Agency administers a ‘taxation program’ or provides a ‘service’ for taxpayers. That is simply not the function of the regulatory body.”
Even if LSUC could be considered a service provider, Morgan writes, the law society has a statutory immunity from these claims, which can only be bypassed by a claim of gross negligence.
Morgan then goes on to strike the claim against Scharfe, although he suggests that it’s at least arguable that an articling principal has obligations to the student. He has given the articling student, by definition inexperienced, 30 days to amend his claim to resolve certain defects.
For example, the claim is directed against his supervisor but not LAO — a fatal flaw given that Scharfe herself was only an employee and not the “directing mind” of the organization. Regardless of the merit, Scharfe personally cannot be held responsible for the organization’s decisions.
More importantly, the judge insists any amended statement of claim contain actual information about an instance of negligence or malicious intent.
“Ms. Scharfe’s breach of duty is asserted as a bald fact,” writes Morgan, “with nothing further to indicate what she did to allegedly fail to fulfill her professional duties or to fall below the requisite standard of care.”
Family lawyer Andrew Sudano, at Shawyer Family Law in Toronto, has been on both sides of the issue in recent years. Called in 2012, he articled with his current firm, and then just this year acted as articling principal for the first time.
Sudano says that he feels for the plaintiff: “When we interview with the students, they are, generally speaking, very vulnerable, because they have a lot of debt and they don’t know what they want and they don’t know what to expect.”
While there simply isn’t enough information in this case to speculate as to what might have caused the termination, Sudano says, in his experience, employers will stick it out with their articling students, even if problems arise.
“You’re making such a commitment to that person,” he says. “And this person is going to become a lawyer in their own right, and we may be working together for 30 or 40 years, so it’s important you look at things in the long term and try to not alienate too many people.”
The reality, however, is that some articling students, regardless of their grades or educational credentials, may not be the right “fit” for an organization, he says — a problem that could constitute an “unresolvable issue.”
Practically speaking, Sudano suggests employers and articling students draft an employment contract with clear expectations.
“It’s always good, particularly for students, to put it in writing,” he says. “What are the expectations? What am I explicitly required to do, so this way there’s no mystery and they’ll at least have a better sense of what they’re getting into.”
Counsel for both defendants declined comment pending a revised statement of claim. The plaintiff could not be reached in time for this article.
The Law Society of British Columbia has fined a Smithers criminal lawyer $6,000 for challenging his client to a physical fight and later sending that client’s confidential information to Crown counsel.
|‘The respondent’s incivility is worthy of rebuke,’ notes an LSBC discipline panel in fining a lawyer for picking a fight with his client.|
“Upon hearing this derogatory remark, the respondent turned and walked back toward the client. He stood very close to the client, and although he does not recall the exact words he used, the respondent admits he used words that challenged the client to a physical fight,” said the law society’s panel.
“The respondent admits his voice was raised and his tone abrasive and unpleasant. The respondent had a briefcase in each hand when he challenged the client to a fight. They then went their separate ways.”
The client had been charged with assaulting his brother, uttering threats, and assaulting a peace officer. According to an agreed statement of facts, McCarthy and his client got into an argument because the client had not retained a civil lawyer to deal with his civil dispute with his brother as McCarthy had advised.
“The respondent suggested that the client could have, and should have obtained some employment, which would have provided him with funds to retain a civil lawyer to handle the civil dispute,” the ruling said.
McCarthy had also told the client he would withdraw as his counsel.
The lawyer presented the law society’s panel with 10 letters of reference that spoke to his character and integrity. The panel acknowledged McCarthy’s remorse and his understanding of why challenging his client to a fight was inappropriate conduct. It also acknowledged he had no prior discipline record and didn’t benefit from this particular infraction.
“However, the respondent’s incivility is worthy of rebuke,” the panel said. “As his counsel stated, ‘we are supposed to rise above it and typically do.’ In this case the respondent did not rise above it. His incivility to the client was disrespectful, embarrassing and negatively reflects on the legal profession as a whole.”
After the courthouse incident, the client sent McCarthy a fax requesting the lawyer return all materials he received from the RCMP, Crown counsel, or himself in his case. The client said the package could either be mailed to him or left with the courthouse registrar.
Instead, McCarthy forwarded the package to Crown counsel. He told the law society it had been a rush decision to do so and he didn’t turn his mind to the fact that there were notes on some of the documents, hand-written by the client, which may be subject to solicitor-client privilege.
“Although it did not, the respondent’s breach of solicitor-client confidentiality had the potential to seriously prejudice the client in his criminal proceedings,” the panel said.
Terence La Liberté, McCarthy’s lawyer, says his client fessed up to his errors from the get-go.
“He fully accepted his responsibility from the outset. There was never an issue about what he did — it was a question of how to resolve it,” says La Liberté.
The penalty for breach of confidential client information ranges from fines to suspension. Fines for this infraction could be anywhere between $2,500 and $7,500, the panel said, while fines for incivility cases typically range from $1,000 to $3,000. McCarthy proposed he pay $6,000 in addition to $1,236 in costs, a deal the discipline committee accepted.
Woman found dead at Ontario military base residence, Canadian Press
Christian doctors challenge Ontario’s assisted-death referral requirement, The Globe and Mail
NRA opposes measure to ban terrorists from buying guns, The Guardian
- B.C. benchers use recent retreat to build stronger ties with aboriginal community
The recent Law Society of British Columbia benchers’ retreat in Penticton was used to build stronger ties with the indigenous community and gain a broader awareness of the issues underlying the Truth and Reconciliation Commission’s call to action and its 94 recommendations.
|First Nations lawyer Ardith Walkem says the bencher retreat had a positive and ‘different feeling at the start.’|
There are, for example, a disproportionate number of aboriginal children now in government care in Canada and a disproportionate number of native men and women filling our jails. Not to mention the numbers of missing women and affected families because of domestic violence.
Bluntly speaking: Can the legal community bring them home?
LSBC president David Crossin acknowledges that the justice system fell far short of protecting an earlier generation of aboriginal men and women and the children forced into residential schools, many of whom now lie in unmarked or unknown graves.
“The justice system really fails the indigenous population, particularly as it relates to the residential school protocol that was put in place. The legacy of those schools is horrible,” says Crossin.
It is the legacy that the justice system now deals with. In the fall of 2015, the LSBC and its benchers adopted a position to embrace the TRC report recommendations.
“The LSBC felt it was one of the most important justice issues of our lifetime,” says Crossin.
The Penticton retreat was a forum for delving deeper into key issues such as indigenous children in custody, criminalization of aboriginal people and their incarceration, and domestic violence.
It also highlighted what many have already known about Canada’s justice system.
“The justice system does not fit with [native] culture and we have to address that. We can’t ignore it,” he says.
“This is not something that will take weeks or months but rather, years,” says Crossin, who is also a member of a Federation of Law Societies of Canada committee formed to address the call to action recommendations.
Crossin quotes TRC chairman Justice Murray Sinclair, who when speaking of the report, said: “We have described for you a mountain. We have shown you a path to the top. We call upon you to do the climbing.”
The Penticton forum did not focus on the socio-economic and political problems surrounding the aboriginal Canadians, which are complex, but more on how to climb the slope.
Crossin says: “It really relates to how the LSBC will lead the legal profession on this path and on this road to reconciliation.”
He says there needs to be more public dialogue on the issues.
“It is a challenge to appreciate how to best heal these relationships. It is our task and our desire to start that process. It starts with personal relationships. It starts by sitting there and looking people in the eye and speaking the truth to one another and going forward. I truly believe we must begin this and that it is a process. It is not going to happen overnight that we come to a collaborative plan with the aboriginal community going forward.”
Crossin adds: “We will be working with the Aboriginal community to formulate a specific concrete plan of action and going forward.”
While the Penticton forum drew in mainly aboriginal representatives from the legal community, Crossin says there is a need for feedback on a broader level.
“The justice system is not just the domain of the lawyers and judges,” he says. “Our mandate is to look after the public interest and that includes thousands within the Indigenous community.”
Ardith Walkem, a First Nations lawyer with Cedar & Sage Law Corp., says an important aspect of the forum was “the different feeling at the start” as those attending expressed a curiosity and openness to explore issues.
“There was a willing to discuss issues and ask the legal profession to respond to them,” she says, as the members looked both “inward as well as outward.”
“The TRC said the law in the past had played a role in the colonization of the Indigenous people,” says Walkem. That role should be examined in the context of how the law is formed and acted upon in society, not just by the law societies but by all Canadians.
Resolving the issues in the Indigenous community will require action on many different fronts, albeit social, political, or legal. “But it is important that the Indigenous people drive it,” she says, adding the Indigenous people want “nothing about us, without us.”
The retreat, which drew in benchers and guests from Nova Scotia, Manitoba, and representatives from other law societies, was more of a discovery process for individuals participating, says bencher Dan Smith, who commented as a First Nations member. Smith, who has worked for government, says they are slow to change.
“There are often systemic and attitudinal barriers that prevent change,” he says. “The system to date requires a change and initiating change within government is very difficult.”
Smith says there is a need for “recognition of being inclusive” in Canadian society. That need translates into native voices breaking through societal barriers and to “be included in the development of policy and regulation. . . .”
Walkem calls this inclusion challenge “one of the greatest human rights questions of our time.”
And, for the legal community, the questions may all simply render down to that - protecting human rights and freedoms, the underpinning of the legal community’s past failure to protect another generation of Indigenous people. That failure now looms as an opportunity to bring the current generation of aboriginal people home on their own terms and definition.
New judicial appointments will mean fresh faces on the bench in Quebec, Alberta, British Columbia, and Ontario, as well as on the Federal Court of Appeal.
|Freya Kristjanson will join the Ontario Superior Court of Justice in Toronto as a judge.|
On Friday, the Trudeau government announced its first judicial appointments since taking office last fall. There are 15 appointments, including six in Alberta, five in Ontario, two in British Columbia, one in Quebec, and one in the Federal Court of Appeal. Of the 15, 10 are women and five are men.
In Alberta, Sheilah L. Martin — formerly a judge with the Alberta Court of the Queen’s Bench in Calgary — has been elevated to Alberta Court of Appeal in Calgary. She replaces Justice C. O’Brien, who retired in 2014.
Martin, who holds degrees from McGill University and the University of Alberta and a doctorate from the University of Toronto, has been on the bench since 2005. She spent 16 years as a professor and dean of the faculty of law at the University of Calgary and has spent four years with Code Hunter LLP in Calgary, from 2001 to 2005, and three with Evans Martin and Wilson (formerly known as Wolch Wilson and Dewitt), from 1996 to 1999.
Martin made headlines recently for her decision to grant approval to an ALS survivor for physician-assisted suicide, while the government was still working on its new law in the area.
Shelia J. Greckol has been elevated to the Alberta Court of Appeal in Edmonton from the Court of Queen’s Bench. She fills the spot vacated by Justice Russell S. Brown, who was appointed to the Supreme Court in 2015. Greckol will also be serving as a judge of the Court of Appeal for the Northwest Territories and the Court of Appeal of Nunavut.
Greckol, who was called to the bar of Alberta in 1976, has served on the Court of Queen’s Bench since 2001. Before that, she was a partner with Chivers Greckol & Kanee from 1986 to 2001, and an associate and a partner with Wright Chivers & Co.
Filling Greckol’s spot at the Court of Queen’s Bench in Edmonton is John T. Henderson. Henderson was called to the Alberta bar in 1980, and then spent 19 years with Fraser Milner Casgrain LLP (now Dentons Canada LLP). Since 2009, he has been a judge with the Provincial Court in Edmonton.
Douglas R. Mah, who was secretary and general counsel with the Alberta Workers’ Compensation Board in Edmonton, has been appointed to the Court of Queen’s Bench. The spot has belonged to Justice D.R. Thomas, who elected supernumerary status in 2015.
Since 1988, Mah has been counsel with Worker’s Compensation, and before that was an associate with Milner & Steer in Edmonton. He was called to the bar in 1982.
Another new face at the Court of Queen’s Bench in Calgary is Gillian D. Marriott. Marriott is the former executive director of Pro Bono Law Alberta, from 2009 to 2013, and has been counsel with Widdowson Kachur Ostwald Menzies LLP in Calgary since 2013. Marriott replaces Justice Martin, who was elevated to the Alberta Court of Appeal.
She also is a former associate, then partner, with Dunphy Best Blocksom LLP. She also has experience with the Alberta Law Reform Institute and the Health Law Institute
Rounding out the Alberta appointments is Avril B. Inglis, a prosecutor with Alberta Justice in Edmonton, who will be joining the Court of Queen’s Bench in Edmonton.
Inglis was called to the bar in Manitoba in 2000 and in Alberta in 2003. She was a Crown prosecutor in both provinces from 2000 to 2014. In 2014, she became project counsel with Alberta Justice and Solicitor General, in Edmonton. Inglis replaces Justice F.L. Schutz, who was also elevated to the Alberta Court of Appeal.
New appointments in Ontario will mean new faces in Ottawa, London, Toronto, Oshawa, and Brampton.
In London, Justice Jonathon C. George has been elevated from the Ontario Court of Justice and will join the Superior Court bench. George was admitted to the bar in 2001, and is a graduate of the University of Western Ontario. George replaces Justice B.M. Miller, who has been with the Ontario Court of Appeal since 2015.
Since 2012, George was a provincial court judge in London and previously served as the legal counsel for the Kettle & Stony Point Chief and council, in Kettle Point First Nation, as well as being an associate with Robbins Henderson & Davis in Sarnia.
Longtime Superior Court Master Calum U. MacLeod now joins the Superior Court bench in Ottawa. MacLeod is a graduate of Queen’s University, and has been a case management master since 1998. He was also previously an associate with Zwicker Evans & Lewis, in Barrie, Ont., and a mediator and arbitrator with MacLeod Dispute Resolution in Barrie, among other experience. He was admitted to the Bar of Ontario in 1983.
MacLeod replaces Justice H. Levenson Polowin, who died in May.
In Toronto, Freya Kristjanson is also joining the Ontario Superior Court of Justice. Kristjanson has been a partner with Wardle Daley Bernstein Bieber LPP since 2015 and a partner with Cavaluzzo Shilton McIntyre & Cornish LLP in Toronto from 2009 to 2014. She also has experience as counsel and then partner with Borden Ladner Gervais LLP in Toronto from 1989 to 2008. She was admitted to the Ontario bar in 1989.
Kristjanson will replace Justice G. Mew, who is now in Kingston, after being transferred there to replace Justice Scott in 2015.
Toronto lawyer Sharon Lavine will be joining the Ontario Superior Court of Justice in Oshawa, to fill the role vacated after Justice M.L. Lack elected supernumerary status earlier this year.
Lavine has served as the alternate chair of the Ontario Review Board since 2004, as well as an associate and then partner with Greenspan Humphrey Lavine in Toronto since 1993, when she was admitted to the bar in Ontario.
Lastly for Ontario, Lucy K. McSweeney will be joining the Ontario Superior Court in Brampton.
Since 2010, McSweeney served as the Children’s Lawyer for Ontario, with the Ministry of the Attorney General. Her prior experience was as litigation counsel with the Ministry of the Attorney General, including as deputy legal director of the strategic planning unit and of the Crown Law Office – Civil. McSweeney replaces Justice D.L. Edwards, who was transferred in March.
On the West Coast, Margeurite H. Church has been elevated to the Supreme Court of British Columbia in Prince George. Church has been a judge of the Provincial Court of British Columbia in Williams Lake since 2011.
She has prior experience with Cundari Seibel LLP in Kamloops and Rogers & Hyslop in Kamloops. She also was a senior research associate with Department of Asian Legal Studies at the University of British Columbia and an associate with Rudd Watts & Stone in Auckland. She is called to the bar in both British Columbia and New Zealand. Church is taking the spot formerly filled by Justice J.W. Williams, who was transferred to Vancouver in 2014.
Maria Morellato, a partner with Mandell Pinder LLP in Vancouver, joins the Supreme Court of B.C. in Vancouver.
Morellato has been with Mandell Pinder since 2009, and was an associate and partner with Blake Cassels and Graydon LLP from 1989 to 2008. She also has experience with the Industrail Relations Council and as an associate with Alexander Holburn Beaudin & Lang. Justice L.A. Fenton — who previously had the spot — was elevated to the Court of Appeal in 2015.
In Quebec, Éric Downs, who was a judge with the Court of Québec in Montréal, will now be serving on the Superior Court of Québec in Montréal. Downs has been on the bench since 2012. His predecessor in the position — Justice M. Delorme — resigned in 2015.
Downs was previously a partner with Downs Lepage from 2008 to 2012. From 1991 to 2008, he was counsel and then partner with Hebert Bourque et Downs, and a prosecutor with Justice Quebec for four years, from 1987 to 1991.
Judith M. Woods, a judge with the Tax Court of Canada, has been elevated to the Federal Court of Appeal. Woods has been with the Tax Court since 2003. Justice C.M. Ryer had resigned in May from the court.
She was previously a partner with McCarthy Tétrault LLP from 1978 to 2003. She also served as a lawyer with Dow Chemical Canada, and was admitted to the bar in 1976.
The appointments are all effective immediately.
The federal government had come under fire in recent months for judicial vacancies that critics said were clogging the courts.
“We know that our country is stronger, and our judicial system more effective, when our judges reflect Canada’s diversity. As promised, we have filled the urgent judicial vacancies by drawing on a list of recommended candidates who are of the highest caliber and who are as diverse as Canada,” said Jody Wilson-Raybould, federal Justice Minister and Attorney General of Canada.
In a statement, Canadian Bar Association president Janet Fuhrer said, “We are delighted that the government has started to fill the vacancies on the courts. The unfilled vacancies have created some delays and other problems for Canadians seeking justice.
“While we all wish for vacancies to be filled expeditiously, we understand that revamping the process will take time and appreciate the Government’s efforts to do things right. We are in communication with government officials and the Minister’s office and fully expect an ongoing dialogue on how best to fill vacancies and appoint a judiciary that is reflective of Canadian society.”
All three shooting suspects in custody in Sooke, B.C.: RCMP, Canadian Press
Man who killed Delta, B.C. police officer is back out on bail, Canadian Press
Yellowknife lawyers say the impending closure of the city’s law library could have significant impacts on access to justice in the Northwest Territories.
|Bar members found out about the impending closure of the law library in an e-mail from the law society. (Photo: CambridgeBayWeather)|
“Costs are already quite significant in the north and access to lawyers is quite a challenge. People are already having difficulties finding lawyers in a lot of areas of practice,” she says. “This will not make that easier.”
Wawzonek says the closure would likely result in an increase in cost for clients, as lawyers will have to spend more on resources.
Bar members were first alerted to the fact the N.W.T Department of Justice had decided to close the library in an e-mail from the law society.
“I think [I was] shocked and disappointed no one was consulted. Members of the bar were not consulted because I would usually notice and participate in that kind of thing,” says Sandra MacKenzie, a litigation lawyer with Lawson Lundell LLP, who is fighting the closure.
“What’s going to happen to the collection? Where any alternatives considered and where are self-represented litigants going to go?”
The justice departmetn said the decision was made because costs have increased over the years while usage has steadily decreased. Last year, it cost the government $467,000 to run the facility, which only saw 984 visits and only had 385 books signed out, according to the government.
“That breaks down to a cost of almost $500 each time a user stepped in the door, and over $1,200 for every book checked out,” justice spokeswoman Marie-Eve Duperre told Legal Feeds in an e-mail.
However, lawyers say the usage numbers the government provided might not be accurate as not everyone signs the attendance book when they enter the library.
While outright closure could save the Department of Justice money, Wawzonek says the N.W.T. CBA branch would like to see an alternative solution achieved through consultations.
“Reduced use and being over budget that to me seems like a financial math problem and not one that is necessarily best solved by a blanket decision to close the law library,” says Wawzonek, who uses the library whenever she has a trial in Yellowknife.
“We’re still hopeful a solution that supports the bar and supports access to justice, while still being fiscally responsible can be found.”
The N.W.T. law society is currently canvassing its members for their opinions and expects most responses will express displeasure, says spokesman Bob Wilson.
“It is unclear whether the results of our informal survey will change any minds, as it appears that the government of the Northwest Territories’ Department of Justice has made its decision,” Wilson said.
Sole practitioners, small firms, and self-represented litigants are likely to be most affected, as they do not have the resources of a large firm, says MacKenzie. But ultimately any lawyers who use the library will be affected.
“We’re a small rural jurisdiction. So lawyers are already struggling to have access to the most timely and most thorough, up to date materials,” says Wawzonek.
“It’s more challenging. People are often sole practitioners or in small groups of practitioners. They’re not necessarily in the position to each individually be buying every tome that’s come out in a certain area of practice.”
The government says court services will offer an interlibrary service, allowing people to access books in Alberta law libraries, but Wawzonek worries whether such a system will be an acceptable resource for lawyers in Yellowknife.
“It does not meet the need for lawyers who need information quickly, immediately, whether it’s a quick reference on a trial mater they’re in the middle of or whether it’s something they’re working on that they need to do some in depth research on,” she says.
“This is the only resource for many lawyers in the territory.”
While bar members are hoping there might be some chance of reversing the decision, they may be too late as the N.W.T. legislature is set to vote on its budget in the next couple of weeks.
Subscribe to Legal Feeds
- Gabrielle Giroday
- Mallory Hendry
- Alex Robinson
- Patricia Cancilla
- Jennifer Brown
- Yamri Taddese
- David Dias
- Gail J. Cohen
- Karen Lorimer