Legal Feeds Blog
|Steven Barrett is representing three Ontario Legal Aid lawyers who have filed a pay equity complaint.|
The complaint, filed on Monday, says legal aid must conduct a job evaluation review to ensure staff lawyers’ pay is line with male lawyers doing similar work.
According to the Pay Equity Act, a position is deemed “female job class” when 60 per cent or more of employees hired in that position are female. According to Steven Barrett of Goldblatt Partners LLP, a lawyer for the complainants, the act also requires employers to maintain pay equity.
“Given that the class is now confirmed to be predominately female, [LAO] has to do a gender-neutral job evaluation...to make sure that the predominantly female lawyers working as duty counsel at LAO are not being underpaid relative to their male comparators,” Barrett says.
Barrett says a similar complaint was previously rejected on the basis that the complainants did not have sufficient evidence to suggest that the staff lawyer position at LAO can be deemed “a female job class” for the purpose of the Pay Equity Act.
“If the staff were unionized, they’d be entitled to disclose of that information but because LAO has refused to recognize the Society [of Energy Professionals] as their bargaining agent, they weren’t able to get the information they needed,” Barrett tells Legal Feeds.
But the information they needed has since come from an interesting place, the complainants say. When, in 2015, LAO lawyers launched a Charter challenge in regards to their bargaining rights, former legal aid CEO Bob Ward submitted a sworn affidavit in which he “bragged” that by the end of 2015, two-thirds of LAO lawyers were women, says Barrett.
“They’ve now conceded whatever the pay equity process had earlier determined there wasn’t sufficient evidence [to support],” he adds.
In an e-mail to Legal Feeds, LAO spokeswoman Feroneh Neil said the figure cited in Ward’s affidavit is accurate. But she added that depending on their call, staff lawyers are paid between $76,000 – $115,000 “irrespective of [their] gender.”
“In 2015, the Pay Equity Commission confirmed that the staff lawyer job class is a gender neutral job class, and found that there was no contravention of the Pay Equity Act,” Neil also said.
LAO staff lawyer Linh Le, who is one of the three complainants, says pay equity legislations are “meaningless” if they’re not enforceable.
“It’s known that women often face pay discrimination and it’s often even worse for women of colour,” Le says, adding her colleagues are mostly women and people of colour. “We feel that there’s possibly some discrimination happening there and we just want to make sure that they’re upholding their duties,” she adds.
The pay equity complaint comes as LAO lawyers continue to mount a campaign to unionize after LAO rejected their bid to be represented by the Society of Energy Professionals in 2013. Their Charter application against LAO and the Ontario government is scheduled for hearing on Dec. 5.
Under labour laws, lawyers must get voluntary recognition from their employers in order to join a union because the Labour Relations Act excludes lawyers. But others who fall into that exception, such as police officers and government lawyers, have received voluntary recognition from their employers to join unions.
LAO, for its part, has said it respects the employee right to associate and is willing to consider associations other than the union the employees want to join. Ward previously expressed concerns about the fact that the employees’ choice of union, the Society of Energy Professionals, is a trade union.
The lawyers say they’ve chosen that union because it is an “experienced and well-resourced association/union to mount an effective campaign.”
The Society of Energy Professionals’ executive vice-president Michelle Johnston, says, “It’s the lawyers who came to us and that’s their right.”
“It’s been three years of turmoil where the government doesn’t want to engage with us in a conversation but they’re doing a lot of work behind the scenes to make sure it doesn’t happen,” Johnston says.
The union, Ontario Federation of Labour President Chris Buckley, and organizers with the Fight for $15 and Fairness campaign have announced they’ll join picketing LAO lawyers tonight outside of a Liberal fundraiser in Toronto.
With files from Glenn Kauth
Family of Winnipeg woman missing for a year asks for help, Canadian Press
The West Coast Women’s Legal Education and Action Fund has been granted intervener status in the inquiry into the conduct of Justice Robin Camp.
|Raji Mangat of West Coast LEAF says it is “heartening” to know that the Canadian Judicial Council saw the issue with a wider lens of public interest.|
Camp presided over a sexual assault trial in Alberta in 2014 and asked the complainant, an indigenous woman who was 19 years old and homeless at the time of the alleged assault, “Why couldn't you just keep your knees together?”
He also referred to the woman repeatedly as “the accused,” and remarked that “sex and pain sometimes go together […] that’s not necessarily a bad thing” and that “young wom[e]n want to have sex, particularly if they are drunk.”
The Canadian Judicial Council is investigating a complaint brought by the Attorney General of Alberta that calls for Justice Camp’s removal from the office of Federal Court judge, a position to which he was later appointed.
It is unusual for interveners to be part of a disciplinary proceeding.
“It was heartening to know the Canadian Judicial Council saw the issue with the wider public interest lens such that they invited interveners — that doesn’t always happen,” says Raji Mangat, director of litigation for West Coast LEAF.
In fact, a coalition is intervening with LEAF and involves organizations with specialization in the law of sexual assault and the protections of the Criminal Code that allow for survivors of sexual assault and complainants in criminal trials to not be susceptible to the myths that somehow their prior sexual conduct or experience reflects on their credibility.
West Coast LEAF is intervening in the inquiry in collaboration with the Avalon Sexual Assault Centre, Ending Violence Association of British Columbia, the Institute for the Advancement of Aboriginal Women, and Metropolitan Action Committee on Violence Against Women and Children.
The coalition will make arguments about the impact of Justice Camp’s behaviour on survivors and on public attitudes about sexual assault, and about the legal protections for sexual assault complainants that Justice Camp allegedly ignored.
Mangat says the opportunity is “ripe for a public conversation” on the issue after the Jian Ghomeshi trial and events in the United States such as the Stanford rape case.
“At this moment in Canadian history, the public has little faith that the criminal justice system will treat complainants in sexual assault trials fairly. Justice Camp’s conduct adds to this distrust and worsens the chilling effect on survivors,” she says. “What faith can we have in a system where a judge — the person whose responsibility is to oversee the process impartially — suggests that the complainant is to blame for the attack, that she consented because she didn’t fight hard enough, or that she is less credible because of her sexual history?”
Mangat says she hopes the Canadian Judicial Council will really look at the conduct of the judge in the case “with a wider lens” of what does it mean for women and other sexual assault complainants.
“What sort of chilling effect does this have on individuals who survive sexual assault and sexual misconduct and are now getting a message from someone who is supposed to be an independent, impartial arbiter of their case — comments that are very, very troubling?” she says. “I think judges really need to recognize that they have a very high role and responsibility in our criminal justice system.”
Justice Camp’s treatment of the complainant turns the clock back on the law of sexual assault, adds Kasari Govender, executive director of West Coast LEAF. “We are here to protect survivors’ right to fair treatment by the courts and equal protection of the law. We know that the vast majority of sexual assaults are never prosecuted, in large part because women do not report for fear of unfair treatment within the justice system. Women will not be safe unless we address this treatment head on.”
The hearing into Justice Camp’s conduct will take place in Calgary Sept. 6-9.
The Toronto Real Estate Board is telling consumers their privacy will be hurt, after a recent Competition Tribunal ruling that clears the way for information about house sales to be shared online.
|The Toronto Real Estate Board is appealing after a Competition Tribunal ruling it alleges will hurt consumer privacy regarding house sale information.|
John DiMichele, TREB’s chief executive officer, said they’ll be appealing the tribunal’s June decision, after asserting “the Tribunal erred in fact and law in determining that TREB has lessened competition.”
The TREB says the board has concerns people will have the information about their home sale prices shared without explicit consent.
“How do you feel about having the sale price of your home placed on the Internet immediately after you sell your property, whether it’s closed or not?” says John DiMichele, TREB’s chief executive officer.
The ruling relates to data in the Multiple Listing Service System Database for homes that have been sold or are pending to be sold, and the realtor’s ability to share that information more widely through a Virtual Office Website. DiMichele says TREB is not opposed to the dissemination of data about house sale prices, but he said they want to ensure the appropriate consents are provided by consumers before the information is available online.
“Privacy laws and decisions of the Privacy Commissioner of Canada are clear in their requirement for consumers to provide their consent prior to the release of their personal financial information and specifically the sold price of your home. The new Digital Privacy Act which came into force in 2015 further buttressed the privacy rights of consumers,” said a TREB news release.
“Canada’s privacy law regime requires that any disclosure of personal financial information for uses not previously identified to the consumer requires the consumer's informed consent. It is TREB’s view that the decision of the Competition Tribunal, with respect, does not respect this right of consumers within the GTA.”
However, the Competition Bureau has welcomed the ruling.
“The Bureau remains focused on ensuring that consumers benefit from innovation and competition in the provision of real estate services,” said John Pecman, commissioner of competition, in a June 3 news release.
A Competition Bureau spokeswoman confirmed TREB “has applied to the Federal Court of Appeal to stay the Competition Tribunal’s order, pending resolution of TREB’s appeal.” She also confirmed the Bureau “has been served with a Notice of Appeal by TREB alleging that the Competition Tribunal erred when it ruled in favour of the Bureau in its abuse of dominance case against TREB.”
“The Commissioner of Competition remains focused on addressing TREB’s appeal and achieving a timely remedy to fully address the concerns raised in his application,” she says.
For TREB, if the order is not appealed, there’s a concern TREB “cannot prevent personal financial information or other confidential information of residential property sellers and buyers within the GTA, such as pictures from being copied, sold, or misused once this information is made available on the Internet.”
“We believe that there were a few mistakes made, and we want to get clarification, but, ultimately, it comes down to the simple fact that, since our first meeting with the bureau, we made it really clear that we would not be opposed to distribution of any sold information but what we have said is that there are laws and we believe, particularly with consent, that the consumers should have the right to choose,” says DiMichele. “The bureau and the tribunal feel that the distribution of the sold information, for some reason, the current consents are good enough, but with the new Digital Privacy Act, we feel that that’s not the case.”
Bob Aaron, a real estate lawyer at Aaron & Aaron Barristers and Solicitors, says the TREB’s appeal “is strictly a delaying tactic.”
“TREB should face the inevitable and work within the Competition Tribunal’s guidelines in the public interest, and not against it,” he says.
“Every day, real estate agents post on the Internet photographs, floor plans, and room sizes of their listings — revealing to the public the most intimate details of the contents and furnishings of the houses. And yet TREB argues that sale prices are too personal to post — even with permission. I don’t see the rationale behind their position.”
Toronto man missing after being jailed in Bangladesh, Globe and Mail
Toronto real estate board to appeal competition ruling, Globe and Mail
Bird flu detection leads to quarantine zone in southern Ontario, Canadian Press
- New rules set 30-month 'presumptive ceiling,' above which onus falls on prosecutors
The gravity and seriousness of a case — even one relating to sex crimes against children — cannot be used to justify unreasonable delay at trial, according to the Supreme Court of Canada.
It’s one of the more controversial aspects of a new legal framework issued today by the court for assessing whether a delay is unreasonable under the Charter.
In Jordan v. R., a drug-trafficking conviction was challenged due to a 44-month delay between the charge and ultimate conviction. In a ruling written by justices Michael Moldaver, Andromache Karakatsanis, and Russell Brown, on behalf of a unanimous nine-judge panel, the court sides with the defendant in ruling that his constitutional right to a reasonably timely trial had been violated.
More importantly, the court took the opportunity to rewrite the rulebook on delays, noting that the framework based on Morin v. R. had contributed to a culture of complacency, where rationalization about whether the delay caused true prejudicial harm could be used to excuse a delay.
In its place, the court has created a framework (the Jordan framework) that sets a “presumptive ceiling” for delay of 30 months — above which the burden will now fall on Crown prosecutors to prove that the delay was a result of exceptional complexity or unavoidable circumstances.
The court, however, leaves it to judges to determine the “exceptionality” of the delay:
As the decision states, “It is obviously impossible to identify in advance all circumstances that may qualify as exceptional for the purposes of adjudicating a s. 11 (b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience.”
The ruling does, however, provide guidance to the courts and specifically rules out justifications based on chronic institutional delay, the gravity of the offence, or absence of prejudice.
As the decision states, “An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached.”
While the ruling in Jordan was unanimous, the one in companion case R. v. Williamson split 6-3 on the matter of societal interest.
This case dealt with historical sex offences against a minor. The trial lasted 35 months — above the presumptive ceiling — leading the majority at the SCC to uphold the appeal court decision to stay the proceedings on constitutional grounds.
The conviction, moreover, could not be saved by an argument for exceptional circumstances. The decision, also written by Moldaver, Karakatsanis, and Russell, states:
“Although W did not suffer significant prejudice, the case was simple, the Crown did little to combat the substantial institutional delay, and W was reasonably proactive in attempting to move the matter along. Therefore, while the crimes committed by W are very serious, the balance weighs in favour of his interests in a trial within a reasonable time, over the societal interest in a trial on the merits.”
Justice Thomas Cromwell offers dissent on this point (with justice Richard Wagner and Clément Gascon concurring). In his dissent, he argues that the gravity of the allegations may create pressure on the justice system that contributes to the delay:
“The new framework does not permit the sort of balancing of interests that is inherent in the concept of reasonableness,” he writes. “In this case, staying these charges would be more publicly disreputable for the administration of justice than tolerating an inordinate trial delay.”
Sex abuse victims sue former Winnipeg priest, church, Canadian Press
Trudeau says Canadians 'shocked' at U.S. shooting deaths, Canadian Press
Drake speaks out against police shooting of Alton Sterling, Canadian Press
At least 35 killed at Shia sacred site north of Baghdad, The Guardian
Twelve people die in three-day traffic jam in Indonesia, The Guardian
An Ontario Superior Court judge has found an Oakville lawyer inappropriately borrowed from his client and produced a document in court that was “likely not genuine.”
In Wedlake v. Richey, Justice Douglas Gray granted a part summary judgment against Jeffrey Richey in a dispute with his client, Frances Wedlake, over unpaid debts the lawyer amassed.
Under the Law Society of Upper Canada’s Rules of Professional Conduct, lawyers are not permitted to borrow from a client, unless that client is a relative or financial institution.
“There is no dispute, and indeed Mr. Richey’s counsel acknowledges, that Mr. Richey violated one or more of these rules,” Gray wrote in the decision.
Lee Akazaki, of Gilbertson Davis LLP, says that the prohibition against borrowing exists so that lawyers will not have their ethics compromised by such an agreement.
“Somebody who has so lost his moral compass as a lawyer to have crossed not just one but I think perhaps three red lines that are important to our professional integrity, he should not be practising law,” he says.
In July 2007, Richey and his wife borrowed $75,000, which was secured against their home, from his client Frances Wedlake, a real estate agent, according to the ruling.
Jeffrey then registered a discharge of the mortgage, something Wedlake denies she had any knowledge of until recently.
He then borrowed a further $130,000 from Wedlake in Aug. 2013, the ruling said.
Richey argued that the loans had been defrayed by legal services he had presented her, but Wedlake disputed that such an understanding existed.
In court, Richey submitted an Acknowledgement and Direction document, which was supposedly signed by Wedlake and authorized the discharge of the mortgage.
Wedlake swore she did not sign the document and said while it was demanded in February, Richey did not produce the document until May, when an order of the court required it.
“The Authorization and Direction purporting to authorize Mr. Richey to register a discharge of the mortgage must be viewed with considerable suspicion,” Gray wrote.
“On a balance of probabilities, I am persuaded that the document is not genuine,” he added.
Richey’s lawyer, Fabio Gazzola, argued that the facts of the case are in conflict and that the matter should go to trial.
Gazzola also maintained that while “the arrangement between Ms. Wedlake and Mr. Richey was somewhat unusual,” it could be explained by the “informal, friendly relationship the parties had for many years.”
He also contended that Richey did not send any bills to Wedlake while conducting legal services for her.
Furthermore, Gazzola said it could not be determined whether the Acknowledgement and Direction document was actually a forgery without a trial.
Gray, however, determined summary judgement as appropriate, citing Hyrniak v. Mauldin, a Supreme Court decision that expanded the use of summary judgment.
“He has provided virtually no records, including dockets, to support his position that legal services were provided or that they had any value,” Gray wrote. “There is no reason to think better evidence would be available at trial.”
Gray ruled that Richey did not comply with his fiduciary obligations and that the mortgage discharge was improperly registered.
Richey is also facing disciplinary proceedings at the Law Society of Upper Canada for allegations he engaged in professional misconduct. The hearings for those proceedings began in May, but the law society could not confirm if they were related to Wedlake’s claim.
“In this case, a solicitor borrowed money from his client. With respect to one of the loans, a mortgage on the solicitor’s home was given,” Gray wrote.
“Disputes have now arisen as to whether the loans have been repaid, and whether the mortgage was properly discharged. To describe the dispute as unseemly would be an understatement.”
When reached for comment, Richey said he is looking to appeal the decision.
Wedlake and her lawyer, Robert Watson, refused to comment on the ruling.
Tax lawyer Philippe DioGuardi’s professional misconduct hearing may have ended last year with a six-week suspension and a $5,000 fine, but the lawyer remains in a legal wrangling with the Law Society of Upper Canada over the regulator’s handling of confidential client information.
Yesterday, the Ontario Court of Appeal rejected DioGuardi’s constitutional challenge of the Law Society Act. DioGuardi and his father Paul, who is also his law partner, had argued the act leaves highly sensitive client information vulnerable to public disclosure during law society investigations.
Last year, in the midst of an investigation into their practices, the DioGuardi lawyers went to the Superior Court to get an order protecting confidential information belonging to clients who have lodged complaints against them. The lawyers, who act for clients dealing with the Canada Revenue Agency, were concerned that if client information becomes public (and known to the CRA) through the law society proceedings, some of those clients may face criminal prosecution.
The DioGuardi lawyers also argued that the law society should obtain a written waiver of solicitor-client privilege from complainants, perhaps in the form of a notice on the complaint form that complainants’ information may become public.
But the lower court had declined to intervene, adding it would not get involved in administrative proceedings “absent exceptional circumstances.” And yesterday, the court of appeal agreed. “Our conclusion on this issue is simple: we agree with the application judge’s conclusion and with his reasons in support of the conclusion,” said James MacPherson, who wrote on behalf of the three-judge panel.
Philippe DioGuardi, who was convicted of taking payment before doing little or no legal work and failing to serve clients to “the standard of a competent lawyer,” told Legal Feeds his challenge at the court of appeal was not about his case.
“It’s about protecting the public. Who cares about me?” he says.
DioGuardi says the issue is that the law society has the double duty of protecting the public and protecting complainants’ privileged information. “There are times when these two duties are in conflict and that’s when you have a problem,” he says.
Although the regulator has processes in place to protect confidential information, “the law society is not perfect,” DioGuardi also says, adding complainants should know there’s a chance their information might end up in the hands of the public or the CRA during the law society’s investigative process.
Part of the DioGuardis’ argument was that the legislative scheme in the Law Society Act related to the Law Society of Upper Canada’s investigation powers violates the Charter ss. 7 and 8 rights of the complainant clients.
In its brief written decision, the court of appeal quoted Superior Court Justice Edward Belobaba, who said the application was premature and the issue should first be decided at the law society.
“In short, there is every good reason to allow the administrative process in this case to run its course,” Belobaba said. “The Law Society Tribunal should be allowed to decide at first instance whether the constitutional arguments advanced herein are well-founded and, in particular, whether there is any room in the legislative design and policy of the act for the specific client-focused protections being sought by the applicants.”
But DioGuardi says client information is at its most vulnerable in the timeframe between when a complaint is made to the law society and a formal hearing starts before a tribunal. If and when law society investigators request documents from the CRA in relation to a complaint, DioGuardi says they may well raise eyebrows at the agency, which may then reexamine the clients associated with the lawyer being investigated.
At that point, “there’s no tribunal yet; it’s just an investigation,” DioGuardi says. “How’s the tribunal going to fix the genie once it’s out of the bottle?”
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