Legal Feeds Blog
About 100 lawyers attended an event earlier this week to hear three Ontario judges advise on how to deliver compelling advocacy, and discuss diversity on the bench. The sold-out event at Fasken Martineau LLP was a collaboration between the Federation of Asian Canadian Lawyers, South Asian Bar Association, and the Canadian Association of Black Lawyers. Ontario Court Justice Shaun Nakatsuru, Superior Court Justice Steve Coroza, and Ontario Court Justice Donald McLeod spoke on a panel in Toronto.
- Report outlines profoundly negative impact on client service and lawyers’ working lives
The Barreau du Québec has issued an in-depth report calling on lawyers to transition away from hourly billing — not only to enhance efficiency for corporate clients but also to foster greater access to justice for individual clients and provide a more balanced professional life for lawyers.
|'What is the most important obstacle preventing you from retaining a pricing arrangement other than hourly billing?'|
Addressing the disturbing reality that fewer Quebecers are choosing to access the legal system for fear of runaway costs, the Barreau is calling for nothing less than a paradigm shift in how legal billing is carried out in the province.
The Barreau argues that firms, instead of serving the interests of the partnership, should be doing a better job serving the interests of clients — whether those interests lie in the efficiency of a fixed or flat-fee structure, or the predictability of a fee that’s conditional on outcome or duration.
[Translated:] “It’s as much a matter of the survival of the profession as it is about the urgency to respond to the access-to-justice needs of citizens,” said Barreau president Claudia Prémont in a statement.
“Our finding is that the legal profession needs to adapt, notably by introducing pricing systems that have emerged since the turn of the century other than the billable-hour model. The Barreau’s priority, in the wake of this study, is to equip lawyers with the tools they need to change their business models and foster an environment for innovative solutions.”
Despite ostensible agreement on the desirability of alternative fee arrangements, the study found 70 per cent of private practitioners continue to rely on hourly billing.
Standing in the way of change, beyond veiled profit motives, seems to be simple inertia, with 51 per cent of in-house lawyers reporting no difference in the quality of work under AFAs, while external counsel see little profit motive for adapting.
External and in-house counsel seem to be, in addition, prone to blaming each other for opposing reform. When asked what the greatest obstacle was preventing their adoption of AFAs, external counsel (23 per cent) and in-house (32 per cent) both said “that’s the way business is done.”
The second biggest obstacle, however, was their legal counterpart, with 21 per cent of external counsel pointing to the client as an obstacle, and 21 per cent of clients pointing to the external counsel as an obstacle.
Antoine Aylwin, vice president of the Barreau, says the dominance of the hourly billing structure has resulted in skewed incentives, with lawyers placing thoroughness above other virtues including the client’s interests.
“The hourly rate created the incentive to be very thorough in their files — you know, to turn every stone and to make sure that they covered all aspects, which in some cases might be what the client needs or is seeking. But it’s not a one-size-fits-all solution. Sometimes the best outcome is a quick outcome, and if the incentive is to drag the case on to bill more hours, you won’t get that result.”
Aylwin notes that the prevalence of hourly billing has also, over the past 50 years, had profoundly negative effects on the working lives of lawyers. The profession is less co-operative, given that lawyers cannot bill hours spent helping colleagues with their respective files.
The system also creates perverse incentives to work innumerable hours to prove one’s worth:
“You hear very frequently from lawyers who leave private practice that their biggest relief is to stop docketing,” says Aylwin.
“You always have that pressure to add more hours to the sheet, and to be able to be profitable and to show it. And you receive better compensation for it, and you’re evaluated on it,” he says. “There’s always that pressure. Not the pressure to get the best results for the client, but the pressure to bill hours.
The Barreau’s report, by raising awareness, is only the first step in the law society’s goal to encourage change within the industry, says Aylwin.
“We will also be organizing a conference about solutions, about how can we bill our clients differently, how we can share the risk, how we can increase predictability . . . and bring tools for lawyers to be able to evaluate fixed-fee arrangements.”
Training sessions will be rolled out within the next six months. No dates have yet been announced for the planned conference.
An Ontario judge on Thursday found former Canadian radio host Jian Ghomeshi not guilty on four sexual assault charges and one count of choking in a high-profile case that stoked a public discussion on celebrity and consent.
|Jian Ghomeshi leaves court with his lawyer Marie Henein the not guilty verdict on four sexual assault charges and one count of choking. (Photo: Jenna Marie Wakani/Reuters)|
Ghomeshi, 48, did not testify in response to three women who told the court that he hit them, pulled their hair, or choked them during intimacy.
In a 2014 Facebook post after being fired by the CBC for “consistently” breaching behavior standards, Ghomeshi admitted that he participates in rough sex, including bondage and discipline, but only with the consent of his partner.
After spending about 90 minutes reading his judgment, Ontario Court Justice William Horkins said inconsistencies in the testimony of the three complainants meant the charges could not be proven beyond a reasonable doubt.
“The evidence of each complainant suffered not just from inconsistencies and questionable behavior, but was tainted by outright deception,” Horkins said in his decision.
However, he did note near the end of the ruling: “My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened. At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false.”
The two-week trial in February stirred up anger among feminists and victims’ rights advocates, who said the three women were attacked on the witness stand. Protesters gathered at the downtown Toronto courtroom on Thursday, chanting that they believed the women.
Social media debate roared on hashtags #Ghomeshi and #ibelievesurvivors after the verdict was announced, while protesters gathered at the downtown Toronto courtroom chanting that they believed the women. One woman was arrested after she charged the front steps of the courthouse, topless, as the prosecutor spoke to media.
Prosecutor Michael Callaghan said his office would consider its options after studying the verdict.
Ghomeshi and his lawyer declined to comment and avoided the protesters by leaving through a back door at the court. His sister Jila Ghomeshi told reporters the family would try to heal after more than a year of "punishment" delivered before due process.
Ghomeshi is scheduled to stand trial on a separate sexual assault charge in June.
In the very first case he heard as judge of the Supreme Court Canada, Justice Thomas Cromwell dissented in his decision. Being “his own person” was the mark of Cromwell’s seven-year tenure on the bench of the country’s top court, lawyers say.
|Justice Thomas Cromwell was appointed to the Supreme Court in 2008 and publicly sworn in Feb. 16, 2009. (Photo: Chris Wattie/Reuters)|
“In his time at the court, his colleagues have always benefited from his wisdom, his rigour and his friendship,” said McLachlin. “Outside the court, Justice Cromwell’s tireless efforts to increase access to justice will continue to benefit Canadians long after his retirement from the bench. We will miss him greatly.”
Cromwell was appointed to the Supreme Court in December 2008. He had previously served as a judge of the Nova Scotia Court of Appeal and worked as executive legal officer to Supreme Court of Canada chief justice Antonio Lamer from 1992 to 1995.
“Being a judge is both a great privilege and an onerous responsibility. I will always be grateful for the opportunity that I have been given to serve Canada in this capacity,” Cromwell said. “As my time as a judge draws to a close, I believe more firmly than ever that an independent and effective judiciary is a cornerstone of democracy.”
A heavy-lifter on the Supreme Court’s bench, Cromwell decided landmark cases including Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, a public interest standing matter; Peracomo v. Telus, an international maritime law case; and Tercon v. B.C., a decision highly anticipated by the bar on exclusion clauses in contracts.
Cromwell is “so completely no-nonsense as a judge on the bench that he had a nose for baloney as finely tuned as any delicatessen owner,” says Supreme Court litigator Eugene Meehan, who adds the judge is also extremely hardworking.
“I know from credible sources that his enormous capacity for work – including weekends – both tired and awed his law clerks,” Meehan says.
As a judge, Cromwell was committed to the issue of access to justice. He chaired the Action Committee on Access to Justice in Civil and Family Matters, and penned a report titled Access to Civil & Family Justice: A Roadmap for Change in 2013.
“He was outreaching, if I could use that phrase. He was opening up an understanding of the court,” says prominent criminal lawyer Bill Trudell. “It’s a big loss, and he’s leaving earlier than we all would have hoped. But having said that, his legacy will be one of calm wisdom.
“And he’s a nice guy, too,” adds Trudell.
Cromwell’s pending departure Sept. 1 will leave a void in the court, and create the first opportunity for Prime Minister Justin Trudeau to appoint a judge to the top court. Some say this should also be an opportunity to change the appointment process, which has varied wildly during previous prime minister Stephen Harper’s tenure, reaching its controversial apex with the failed appointment of Marc Nadon to the top court.
Trudell says the new government should model its Supreme Court appointment process after its senator selection process. A committee comprised of representatives from across the country should be tasked with consulting with the bar to find the best candidates for the job, and pass on the list of qualified individuals to the prime minister, says Trudell.
He suggests doing away with the current parliamentary committee.
“I think the public would be really impressed and happy with that and I think it’s something that should be considered,” says Trudell.
Cromwell, who hails from Nova Scotia, would have to be replaced by another judge from the Atlantic provinces. To date, Newfoundland and Labrador has not been represented by a judge in the highest court. But whether the new appointee should come from that province should not be main determining factor, says Trudell.
“It’s time for someone from the Maritimes or from the East to replace Justice Cromwell, if that’s possible. I don’t think you should sort of say, ‘It’s Newfoundland’s time,’” as long as an “imminently qualified” judge is appointed from the eastern region, says Trudell.
A requirement that the appointee be bilingual should also not stop a qualified judge from sitting on the bench, says Trudell.
“You can always learn a language,” he says. “Let’s just say we decided it was time for a First Nations representative, and if that person is imminently qualified but didn’t speak French, I don’t think you [should] pass them over because they can learn it. The same thing with a woman.”
Online gaming company CEO faces charges of market manipulation, Canadian Press
Ontario regulation bans carding by police, Canadian Press
An Ottawa woman who worked for McDonald’s restaurants for more than 25 years has received $104,499.23 in lieu of 20 months notice for wrongful dismissal.
|The thresholds a former McDonald’s manager was ordered to meet ‘were arbitrary and unfair,’ ruled an Ontario judge. (Photo: Jacky Naegelen/Reuters)|
On Aug. 2, 2012, PJ-M2R ended Brake’s employment after 20 years with the company. Brake felt she was constructively dismissed and sought damages for common law notice and severance.
Employment lawyer Ellen Low, of Whitten & Lublin, says the amount awarded “isn’t totally out of the ballpark” largely due to Brake’s age and years of service.
“While it’s always an individual assessment every time and we know the Court of Appeal hasn’t said one month per year, she’s been there 20 years and is 62 years old at the time she is let go,” says Low. “So despite the fact most people would assume this is a lower managerial position, whenever you’re dealing with someone who is 62 it may become more persuasive.”
Even though the woman received glowing performance reviews, Low says that isn’t supposed to be taken into account with the Bardal factors (age, length of service, character of employment, and availability of similar work).
“My personal view is there was some weighing of those non-Bardal factors whenever judges are making a determination about a notice period,” she says. “It’s always more art than science.”
Low suggests Brake might have also been able to make a case for unpaid overtime since she clamed to have worked 12-hour days almost seven days a week, but she didn’t.
“It was possible if she was truly a manager she was exempt,” she says.
PJ-M2R’s owner, Perry McKenna, thought he had the right to terminate Brake since she failed to meet the standards expected of her position.
At the time Brake was dismissed, she was 62 years old (now 65) and had worked for McDonald’s for the majority of her working life — about 20 of those years was for PJ-M2R. Her career with the restaurant chain started in 1986 in Corner Brook, Nfld. She moved to Ottawa in 1999 and started working for PJ-M2R and was considered a top employee for many years. In 2004, she was promoted to store manager. From 2000 to 2007, she received high ratings in her performance reviews.
In 2008, Brake was transferred to manage the company’s Kanata, Ont., McDonald’s. As part of her duties, she also managed a nearby McDonald’s located within a Wal-Mart store. Eventually, in November 2011, Brake was assigned exclusively to the Wal-Mart location.
Her first negative review came in 2011 from McKenna. The Wal-Mart location she had been transferred to had been trending badly since at least April 2011. The location ranked 1,410 out of 1,437 McDonald’s restaurants in Canada.
On April 16, 2012, Brake was summoned to a three-month review meeting. She received another overall rating of “needs improvement.” At the meeting, she was informed that as a result of her performance, she would be participating in McDonald’s progressive discipline program known as Goals Achievement Process.
On Aug. 2, 2012, McKenna told Brake she had failed the GAP program and they needed to discuss her future. She argued she should be allowed to stay on as a manager, but she was offered the position of first assistant. The salary would be the same, but the benefits would be less. She would also have to report to employees she had trained and supervised, many who were younger and less experienced.
McKenna said she had to “take a demotion or go.” Brake refused to accept the demotion and left, never to return. The termination of her employment “for cause” was sent to her in writing soon thereafter.
In his decision, Phillips wrote: “I find that the GAP program was not implemented in accordance with its terms, either in letter or spirit. The thresholds that Ms. Brake was ordered to meet were arbitrary and unfair.”
Since her dismissal, despite several efforts, Brake was not able to secure a comparable managerial position.
“I find that her subsequent employment represents a reasonable effort on her part to mitigate her losses. However, I also find that her ability to find employment does not take away from the loss she suffered from being dismissed without cause.”
Phillips wrote that Brake was “set up to fail” from the beginning of the GAP program.
“Not even the fact that she did ultimately manage to meet the Defendant’s heightened expectations could save her in the end,” he said. “Well before the completion of the GAP, Ms. Brake’s removal from her manager position was a foregone conclusion. Given the length of her employment and her loyal history of contributions to the organization, she was entitled to expect more assistance in overcoming her newly alleged shortcomings. I find the GAP program as implemented by the Defendant was less an instrument of help than it was a way to record Ms. Brake’s anticipated inability to meet the Defendant’s shifting expectations in order to justify a decision that had effectively already been made.
“I find that in the overall circumstances, PJ-M2R unilaterally made a substantial and fundamental change to Esther Brake’s employment contract and that in doing so constructively dismissed her without cause,” wrote Phillips.
In March 2013, Brake accepted a position as a cashier at Home Depot. She works about 35 hours a week and earns $12.50 per hour. She continues to work there.
“The cashier position she occupies now at Home Depot is so substantially inferior to the managerial position she held with the Defendant that the former does not diminish the loss of the latter,” wrote Phillips.
The Supreme Court of Canada has ruled a teacher’s union can call witnesses from an in camera school board meeting that took place in 2009.
|The SCC said it was “reasonable” for the arbitrator to discover what happened in camera to establish if the committee’s deliberations had been thorough.|
After hearing the teacher in a partially in camera meeting, the executive committee had a full in camera meeting. Then, the committee had a public meeting where a resolution was adopted ending the teacher’s contract. The union filed a grievance.
In the ruling, the Supreme Court held an appeal by the school board should be dismissed, after the board objected to having committee members who were present at the meeting testify as part of the grievance process.
“The Board objected to having them testify, arguing that the motives of individual members of the committee were irrelevant and that deliberative secrecy shielded the members from being examined on what had been said in camera,” said the ruling.
The board also argued motives of the committee members were “unknowable” and ruled out “the examination of the members of any collective body on the motives that underlie a decision made by way of a written resolution.”
The Supreme Court, however, disagreed.
“The principles that the motives of a legislative body are 'unknowable' and deliberative secrecy do not apply to a public employer the Board in this case, that decides to take disciplinary action against an employee, even if an in camera meeting is ordered,” said the ruling.
According to the ruling, the arbitrator allowed for examination of committee members, but the Superior Court barred testimony, except for “the formal process that led to their decision that was announced at the public meeting.” The Court of Appeal then reversed the decision.
In its ruling, the Supreme Court said it was “reasonable” for the arbitrator to discover what had happened in camera to establish if the committee’s deliberations had been thorough.
Audrey Limoges-Gobeil, counsel with the Syndicat de l’enseignement de la région de Laval, says the “precision that this ruling brings about the standard of review, in a judicial review, will have a big [impact].”
“For administrative and labour law in Canada, it’s a major decision because it is now clear that the workers can examine the members of decision-making authority, such as an administrative board, executive council or in our case, a council of commissioners about the motives leading to any disciplinary sanction,” she says.
“Essentially, what I take from this ruling is that we cannot say in advance that a collective decision that has to be taken by a group of people and embedded in a document, like a school board resolution or a municipal council decision, we cannot say as a principle that because the resolution has to be written down, it speaks for itself,” says Yann Bernard, a partner at Langlois Lawyers LLP who represented the board.
“There will be circumstances in which we can ask the authors of the resolution to discuss not only the process that led to its adoption, but . . . what more, we don’t know yet. But the court is saying this will be the arbitrator’s evaluation of relevance, what is relevant, what is not.”
Bernard says the board’s main argument was “that if you’re asking a school board, a city, and type of local government to make a decision on anything, and that it has to be taken by a group of people, then written down in a resolution, then there’s no point in asking the people what they meant, what was their intention, you can only read the resolution, which may be the result of compromises.”
“The resolution speaks for itself, and says the motives,” he says. “We were submitting to the court that it’s . . . dangerous to try to question individuals on their motives or how they reached a decision, because it becomes immaterial.”
This week, the Supreme Court of Canada will hear six appeals. The first three are criminal cases relating to search and seizure and reasonable grounds for arrest. The court is also hearing a case involving solicitor-client privilege in Quebec, as well as a curious tax case where the authority increased its own assessment after a taxpayer appeal.
March 21 – Ontario – Wu. v. R.
Charter of Rights: The appellant was charged with drug-related criminal activity. Charges were dropped after the trial judge found the detective investigating the case had no objectively reasonable grounds to request a search warrant. The appeal court set aside the decision and ordered a new trial. The SCC will determine, in an oral hearing, whether there were reasonable grounds to arrest and charge the appellant.
Read the Ontario Court of Appeal decision
Related news story:
Botched case highlights need for JPs to have legal training, Toronto Star
March 21 – Alberta – R. v. Villaroman
Criminal law: The respondent brought his computer into a repair shop, where a technician stumbled upon child pornography hidden in a music folder. The technician called the police, who got a search warrant to inspect the machine. The respondent argued at trial that his right to be protected from unreasonable search and seizure had been violated. The trial judge rejected that argument, but the appeal court quashed the conviction. The SCC will determine whether Charter protections are applicable in such circumstances.
Read the Alberta Court of Appeal decision
Related blog post:
Mere existence of illegal content on a portable device is insufficient to ground a conviction for possession, Canadian IT Law Association
Criminal law: The appellants were involved with the Hells Angels. They provided protection for a cocaine distribution business. At trial, the appellants successfully argued that their role did not involve the trafficking of cocaine. The appeal court substituted the acquittal for convictions in both cases. The SCC will review whether the appeal court erred in conflating the appellants’ activities with drug trafficking.
Read the Alberta appeal court decision
March 23 – Alberta – Edmonton v. Capilano Shopping Centres
Administrative law: When the Capilano Shopping Centre was assessed, for property tax purposes, at $31.3 million, it appealed to the Assessment Review Board for the City of Edmonton. Beyond merely rejecting the appeal, the review board’s assessor used vague language in the Municipal Government Act to increase the assessment to $40.8 million. On appeal, the court found the review board could only consider the appeal before it, and could not “cross-appeal” its own assessment. The SCC will provide interpretive clarity to the act.
Read the Alberta appeal court decision
Related blog post:
The return of context in the standard of review analysis, University of Montreal
March 24 – Quebec – Chambre de l’assurance de dommages v. Aviva Insurance
Legislation: The appellant is a regulator in Quebec that was pursuing an ethics inquiry against a claims adjuster working for the respondent. As part of its investigation, the regulator demanded certain documents that were withheld by the claims adjuster due to solicitor-client privilege. On appeal, the court rejected the regulator’s assertion that solicitor-client privilege, which serves private interests, cannot be used to stifle an inquiry with public interests at stake. The SCC will determine whether the relevant provincial legislation affords solicitor-client privilege.
Read the Quebec Court of Appeal decision
Related blog post:
Litigation privilege given same protection as solicitor-client privilege, Law in Quebec
Ruling on senator expenses to be made public, Canadian Press
Suspect in alleged kidnapping arrested in B.C., Canadian Press
Trial resumes for two men accused of killing Tim Bosma, Canadian Press
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