Legal Feeds Blog
A B.C. Supreme Court judge has ordered the provincial government to scrap its three-year pay hike program for B.C. provincial court judges.
In the latest in a series of legal disputes over salaries, the court was asked to assess the remuneration and associated benefits for judges of the Provincial Court of British Columbia for the third time in four years.
In Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), the government proposed raises of 1 per cent, 1 per cent and then 1.5 per cent over the three-year period of 2014-17, which was less than what the Judicial Compensation Commission, an independent body that oversees judges’ remuneration, had recommended. The JCC proposed raises of 2.9 per cent, 1.5 per cent and 2 per cent over the same three years.
In his ruling, Justice Christopher Grauer said the government’s counter-proposed, lower increases “failed to meet the test of rationality in concluding that the JCC’s recommendations were unfair and unreasonable.”
Grauer did not, however, go so far as to accept the association’s request he implement the JCC’s proposed rates.
“It is not for me to set salaries. It is not for me to assess competing priorities for public funds. That . . . is the government’s responsibility, for which it is answerable to the electorate,” he said, adding, “the process is key.”
Under the Judicial Compensation Act, the JCC is tasked with reviewing provincial court judges’ salaries every three years.
As Legal Feeds reported in March 2015, the recommendations from the 2010 JCC report were implemented after the B.C. Court of Appeal ruled that provincial court judges are entitled to raises based on the consumer price index. In the fall of 2015, the dispute was settled for good after the Supreme Court of Canada refused to hear the provincial government’s case for overturning the appeal court ruling.
At that time, the current disagreements over the JCC’s more recent recommendations for 2013 increases had already begun.
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- Independent advisory board instructed to look for bilingual candidates
Prime Minister Justin Trudeau has announced a new process for judicial appointments to the Supreme Court of Canada, including a seven-member advisory board that will compile a short list for consideration.
|Susan Ursel is the sole Ontario lawyer who will be part of the new seven-member independent advisory board for Supreme Court of Canada judicial appointments.|
Applications for the spot that will be vacated by retiring Justice Thomas Cromwell can be submitted until Aug. 24.
“The Supreme Court of Canada is respected nationally and internationally for its excellence — it is recognized as a model of a strong, independent judicial institution. This is due in no small part to a tradition of appointing only the most exceptional and impressive individuals to the court,” said Trudeau in a news release that stressed the introduction of “an open, transparent and non-partisan process that will help ensure that the best, most well-qualified people reflective of Canadian society are named to Canada’s top court.”
“For the first time, any qualified Canadian lawyer or judge may apply for appointment to the Supreme Court of Canada through the Office of the Commissioner for Federal Judicial Affairs,” said the news release.
Candidates for the job are expected to be “jurists of the highest caliber, functionally bilingual, and representative of the diversity of our great country.”
The board will review candidates who submit their names for consideration, then whittle it down to a short list of three to five people for the prime minister to weigh.
Other big changes mean that once-private information related to the process will be now be shared with the public, including the assessment criteria the board will use to select its top picks, the questionnaire all applicants must send in and the answers provided by the prime minister’s chosen nominee.
“The Minister of Justice and the chair of the Advisory Board will appear before Parliament to discuss the selection process. A number of Members of Parliament and Senators — from all parties — will also have the opportunity to take part in a Q&A session with the eventual nominee, before she or he is appointed to the Supreme Court of Canada,” said the release.
Emmett Macfarlane, an assistant professor of political science at the University of Waterloo who specializes in the Supreme Court of Canada, says he likes the changes, such as making the nominee’s questionnaire public.
“For the most part, I think they’re a very positive step towards enhancing the transparency of the process,” says Macfarlane, who said an issue “with the old process and its very opaque nature” were gaps in the process when it came to “Canadians being able to get a bit of an understanding of the judges and how the court actually works.
“It’s important for there to be — not a formal vetting process, that might be too harsh a word — but elements of the process that actually give us a sense of who these people are before they’re formally appointed. And what this new process allows, in a couple of ways, is various modes of screening,” he adds.
The seven members of the advisory board include two lawyers chosen by the Canadian Bar Association and the Federation of Law Societies of Canada, a retired judge selected by the Canadian Judicial Council and a legal scholar put forth by the Council of Canadian Law Deans. It also includes another three people chosen by federal Minister of Justice Jody Wilson-Raybould, including two people who are non-lawyers.
Former prime minister Kim Campbell will lead the board. She is currently the founding principal of the Peter Lougheed Leadership College at the University of Alberta. Susan Ursel, who is a partner with Ursel Phillips Fellows Hopkinson LLP, is the sole member from Ontario.
Ursel is also chairwoman of the Canadian component of the African Legal Research Team.
The board also: includes Camille Cameron, dean of the Schulich School of Law at Dalhousie University in Halifax; Jeff Hirsch, president of the Federation of Law Societies of Canada and a partner with Winnipeg law firm Thompson Dorfman Sweatman LLP; Richard Scott, former chief justice of the Manitoba Court of Appeal and current counsel, arbitrator and mediator with Hill Sokalski Walsh Trippier LLP in Winnipeg; Lili-Anna Pereša, a trained engineer who is president and executive director of Centraide of Greater Montreal; and Stephan Kakfwi, a former premier of the Northwest Territories and president of the Dene Nation.
Ursel told Legal Feeds by e-mail that she is “delighted and honoured to be a member of the advisory board.
“I am looking forward to working with my colleagues to recommend a short list of qualified functionally bilingual candidates for consideration by the prime minister for an appointment to the Supreme Court of Canada,” said Ursel.
“I am particularly pleased to be able to assist in a process which I believe will make an important contribution to the justice system in Canada.”
Eugene Meehan, a lawyer at Supreme Advocacy LLP and former executive legal officer at the Supreme Court, told Legal Feeds by e-mail that “given how long the process for selecting Supreme Court justices has been a concern, having a clear process set down in writing is a welcome change for the legal community and public alike.
“I don’t see it as a drastic change but instead a lifting of the veil on the process which has been used — in various iterations — to consistently ensure our top court has a strong bench,” he added. Meehan also said, “The bilingual requirement is welcome, but we may see some challenges as the eligibility requirements are constitutionally protected.”
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As Alberta’s economy languishes and funding streams dry up, local non-profits say initiatives like Field LLP’s Community Fund Program become all the more important.
|Steve Eichler, a partner at Field LLP, presents Marla Rabinovitch, of Soup Sisters, with a Community Fund Program prizes for its Souper Kids initiative in southern Alberta.|
Now in its fourth year, the western Canadian law firm’s initiative is dishing out $75,000 to a number of local community initiatives across Alberta and the Northwest Territories.
“It’s a real tough environment right now in Alberta. The economy is tough and as you probably know, oil and gas is suffering very badly which trickles down to everybody,” says Diana Segboer, the executive director of the Pet Access League Society — one of this year’s recipients.
“So it’s a tight economy and it’s an amazing gift for us to be able to bring this program to the kids.”
Field LLP, which has offices in Calgary, Edmonton and Yellowknife, has seen the pool of applicants grow to a record 122 projects this year, up from 105 applications in 2015.
Doreen Saunderson, the firm’s managing partner, says that the number of applicants has likely grown in part because more organizations are finding ways to meet their needs.
“Organizations are having a harder time finding funding and more and more people are identifying needs and creating programs to try to fill the needs that are observed now too,” she says.
“So I think it’s both that there are new ideas coming out of the woodwork and a greater need for funding for those programs.”
The firm recently announced five winners of the competition from southern Alberta, where there was a 23-per-cent increase of applications this year, and a total of 71 applicants.
Field LLP gave five winners a total of $30,000 — with $10,000 going to the grand prize winner and $5,000 to each runner up.
Among them was the Adapted Bike Program, a Calgary Cerebral Palsy Association initiative, which won the grand prize and provides customized bikes for children with disabilities.
Sheralee Stelter, the executive director of Cerebral Palsy Kids and Families, says the prize money will go towards buying bikes that could end up helping 50 to 60 children over the years.
“This donation is crucial to getting kids on bikes,” says Stelter.
Other prize winners included the Pet Access League Society’s pet therapy program for schools, as well as an outdoor classroom for an independent Calgary school, the Phoenix Education Foundation.
“It is absolutely essential,” Larry Leach, the school’s business manager says of the prize money. “The project wouldn’t have gone on without it. We should be able to fund the entire project.”
The other projects that rounded out the five winners this year were the Women’s Centre, which supports women in times of crisis and provides them with personal care items and food, and Souper Kids, an initiative that produces soup for local emergency shelters.
The program selected its winners based on a combination of online voting and the decisions of a panel of judges made up of Field LLP lawyers, clients and community members.
A further $30,000 was disbursed to initiatives in northern Alberta and $15,000 was given to programs in the Northwest Territories.
For those who did not get funding this year, Saunderson says the program will reboot again next year in the spring.
Saunderson says funding these kinds of projects has always been part of the firm’s culture.
“Our firm has always supported those organizations that our members belong to, but also been involved otherwise in giving in the community. Despite the recession, which affects all businesses in Alberta, we’re some of the fortunate ones that are still employed and still in business and still functioning and it’s important for us to give to the community on a consistent basis,” she says.
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A renowned rider originally not selected for the Canadian team at the upcoming Rio Olympics will now be included, after arbitration through the Sport Dispute Resolution Centre of Canada.
|Robert Cohen says a recent arbitration involving an internationally ranked equestrian, and that overturned the selection of riders who would be attending the Rio Olympics, is ‘exceptional.’|
A selection panel had chosen four riders, and their respective horses — including Robinson, but not Phoenix — to compete in eventing, which arbitrator Robert P. Armstrong of Arbitration Place describes as “an equestrian competition where a single rider/horse combination competes in the three phases of dressage, cross country and show jumping.”
Phoenix, Don Good, owner of horses Pavarotti and Bentley’s Best, and Anita and Don Leschied, owner of the horse A Little Romance, argued that Phoenix “is and has been Canada’s leading Eventing competitor for the last 10 years with significant international achievements,” and that she “satisfied all Nomination Criteria to be appointed to the 2016 Olympic Team” riding Pavarotti or A Little Romance.
“They further submit that Kathryn Robinson, who was selected to the team with her horse, Let it Bee, simply does not measure up to Ms. Phoenix,” said the ruling.
Armstrong ultimately agreed, after arbitration took place July 6, and a decision on July 11. He ultimately ruled Phoenix should attend the Olympics with A Little Romance.
Peter Howard, of Stikeman Elliott LLP, told Legal Feeds by e-mail that “Ms Phoenix, her owners, and us as their counsel, have not and do not intend to comment on the ruling.”
The hinge of the decision were conversations that occurred at the Bromont CCI3, a competition in Quebec, where Phoenix did not ride with the horses Pavarotti and Bentley’s Best. The conversations in dispute were between Phoenix and Clayton Fredericks, who the ruling describes as “a former Olympian who competed in eventing competitions for Australia” and coach of the team, and between Fredericks and Good.
“Mr. Fredericks acknowledged that it was his view that Ms. Phoenix should have run Pavarotti and Bentley’s Best at the competition in Bromont. He acknowledged that he expressed this view to Ms. Phoenix. However, he denied that he threatened Ms. Pheonix that her failure to run the horses in Bromont would keep her off the Olympic team,” said the ruling.
Armstrong, however, said in his ruling that he accepted that “Fredericks earnestly believed that both horses needed another run at cross-country before the Selection Panel would meet.”
“However, he became a man with a mission on this issue and my assessment, unfortunately, is that he lost it,” said the ruling. “He told both Mr. Good and Ms. Phoenix that Ms. Phoneix’s four horses would not be considered for the Rio Games for failure to run in Bromont — an event that was clearly not mandatory.”
“It is essential that a selection panel proceeds impartially and applies the nomination criteria in a way that ensures fairness and also the appearance of fairness,” said the ruling. “The approach taken by Mr. Fredericks with Mr. Good and Ms. Phoenix fails that test.”
Robert Cohen, a partner in the advocacy group at Cassels Brock & Blackwell LLP, has acted in sports and entertainment arbitration disputes, and called the case “exceptional.”
Cohen was not involved in the case, but says he does “not think that this case will unhinge the deference that arbitrators and courts must show for reasonable decisions rendered by Olympic or other team selection panels acting in good faith and applying appropriate considerations.”
“This seems to be one of those rare cases where, through the [marshaling] of compelling evidence, a disgruntled athlete could actually demonstrate the appearance of bias, a flawed consideration of factors by the selection committee, and possibly undue pressure being placed on other members of a selection committee by an influential member, who was ‘on a mission’ to impose his own conditions for inclusion on a team, even though those conditions were not requirements of the published selection considerations,” says Cohen.
“In short, this was a perfect storm of evidence to demonstrate the improper exercise of discretion of a selection committee so as to allow the arbitrator to find that their decision was both procedurally and substantively flawed to such an extent that an arbitrator could justifiably ‘gallop’ over the selection panel’s expertise and decision.”
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It seems Canadian lawyers are spending fewer hours on pro bono work than they were last year.
|Gordon Baird says he's aiming for 50 pro bono hours per lawyer per year.|
The percentage of lawyers completing 10 hours or more of pro bono also dropped by more than 25 per cent, to 26.9 per cent from 36.3 in 2015.
The survey average was 39.2 pro bono hours per lawyer in the last year.
However, Nicholas Glicher, director, legal, and head of African Programmes at the Thomson Reuters Foundation based in Johannesburg, says only four Canadian firms — Blake Cassels & Graydon LLP, McCarthy Tetrault LLP, Shearman & Sterling LLP, and Skadden, Arps Slate Meagher and Flom LLP — responded to TrustLaw’s request for data, which makes it difficult to “judge the whole of the Canadian pro bono community.”
In 2014, Canadian Lawyer conducted a pro bono survey offering more of an in-depth look at the Canadian pro bono market.
Gordon Baird, partner at McCarthy’s and chair of its National Pro Bono Committee, says he was surprised by the drop compared to last year’s index and is hoping to increase the firm’s hours up significantly.
“Our goal — although whether it’s ultimately achievable I don’t know — is to try to get to 50 hours per lawyer per year,” Baird says.
“We’re clearly well short of that but we’re always looking for good opportunities for pro bono projects for our lawyers. I would love to see the number higher than it is at the moment.”
Part of the problem, Baird says, is that much of the work out there isn’t suited to the kind of work the firm does. There’s a ton of demand for help with family law cases, for example, but “we don’t do family law,” he says.
“Part of our challenge is to find work that fits within our skillset,” Baird explains.
“We’re constantly searching for other referral sources of interesting work. We know the work is out there — it’s just a question of getting connected to it.”
Glicher says for future reports he’s hoping to get more information about the Canadian market.
“This will give us a much more rounded, fuller picture of what’s actually happening on the ground in Canada,” he says of the TrustLaw survey, now in its third year.
Baird suggests other Canadian firms may be challenged by the actual tracking of pro bono hours. At McCarthy’s the firm lawyers file pro bono hours just like billable hours and the information can be available from the firm’s accountants “within minutes.”
Shearman & Sterling, and Skadden Arps Slate Meagher and Flom are in fact U.S.-based multinational firms with Canadian offices.
“It is a little more difficult to stand out, particularly if firms are blending the numbers across borders because there’s a much stronger pro bono culture in the U.S. certainly than there is in Canada,” Baird says.
“It does create numbers that are a little difficult for us to compare. It may not be immediately apparent but I think it’s really apples and oranges — you’re not really comparing the same thing.”
Compiled using data from over 130 law firms, representing 64,500 lawyers in 75 countries, Glicher says the index aims to provide transparency on the amount of pro bono work being done across the globe and also offer information on how to structure a robust and sustainable pro bono program.
“At the moment the U.S. market is light years ahead of the rest of the world when it comes to pro bono, and there is much more data about pro bono in the U.S. than there is in any other market — I’m in no doubt that those two things are linked,” Glicher says.
Of the firms who responded, 65 per cent have a pro bono policy, 85 per cent employ a pro bono coordinator, and 60 per cent have a pro bono committee. These structures have a significant effect on pro bono engagement levels.
The data shows pro bono engagement levels are spreading beyond the traditional markets. China’s pro bono work has grown 211 per cent since the first index in 2014, with lawyers there clocking an average of 37 hours annually — a number that rivals established markets such as Australia and England and Wales. Glicher says Asia has seen a 40 per cent year-on-year increase since the survey began.
“There’s such a swift globalization of law firms at the moment and what this brings is an understanding of how to build comprehensive pro bono programs.”
The survey also reports a substantial increase in the selection of the “Immigration, Refugees and Asylum” topic as a key focus area for pro bono work.
41.4 per cent of firms — compared to 24 per cent last year and 28 per cent the year before that — saw more pro bono hours dedicated to this area.
He says the rise in focus on the global refugee crisis shows a willingness of law firms to use their significant resources and expertise to “help tackle one of the greatest challenges we are facing, potentially, in this generation.”
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