Legal Feeds Blog
- Organization has immunity under international agreements
Employees of the World Bank will not have to testify in the SNC-Lavalin bribery case, nor will the organization be required to produce documents that could aid in the defence of former executives charged in the scandal.
|The Supreme Court of Canada ruled the World Bank does not have to hand over documents. (Photo: Reuters)|
The defendants were challenging the admissibility of wiretap evidence. After the investigating RCMP officer’s e-mails were lost (due to a “computer problem”), defence sought testimony from World Bank employees who had tipped the RCMP off to the alleged corruption around a Bangladeshi construction bid.
The World Bank had barred SNC-Lavalin from participating in World Bank-funded projects for 10 years after conducting an investigation into corruption allegations concerning the engineering firm.
Despite international agreements that grant the World Bank immunity from court processes, the trial judge found that the World Bank had waived its right by providing the documents to the RCMP.
Today, in a unanimous decision co-written by justices Michael Moldaver and Suzanne Côté, the Supreme Court set aside the production order — ruling that the World Bank’s co-operation with Canadian authorities does not amount to a waiver of its immunity.
The decision finds clear immunity provisions under the World Bank’s Articles of Agreement:
“The immunity outlined in s. 5 shields the entire collection of stored documents of the IBRD and the IDA [divisions of the World Bank] from both search and seizure and from compelled production. This broader interpretation is consistent with the plain and ordinary meaning of the terms of s. 5 and is in harmony with its object and purpose. Partial voluntary disclosure of some documents by the World Bank Group does not amount to a waiver of this immunity. Indeed, the archival immunity is not subject to waiver.”
“These immunities have been implemented in Canadian law by two Orders in Council, and the Articles of Agreement of the IBRD and the IDA have been approved by Parliament in their entirety through the Bretton Woods and Related Agreements Act.”
Indeed, even if the World Bank did not have immunity under international agreements, the SCC ruled that the application to challenge the wiretap — known as a Garofoli application — was erroneously assessed at trial.
The defence had argued that the investigating officer’s lost emails may have revealed information that would render the wiretap illegal. But the SCC ruled that the burden of proof rested with the accused, and a theoretical connection wasn’t enough to show relevance between the production order and the wiretap authorization.
“While the documents sought may be relevant to the ultimate truth of the allegations in the affidavits,” the decision states, “they are not reasonably likely to be of probative value to what [the investigating officer] knew or ought to have known since he did not consult them. The accused have not shown that it was unreasonable for him to rely on the information he received from the [World Bank’s investigative arm] and other officers.”
The World Bank welcomed Friday’s decision.
“Today’s announcement is a vote of support to the World Bank’s anti-corruption work and its cooperation with member countries to ensure that development projects are implemented with integrity,” said Leonard Frank McCarthy, World Bank Integrity Vice President.
With files from Reuters.
The Canadian Bar Association-British Columbia branch’s Rural Education and Access to Lawyer Initiative program is getting creative when it comes to placing students in small or rural areas where there is an acute need for lawyers.
|In some rural areas of B.C. there’s only one lawyer for every 10,000 residents. (Image: Shutterstock)|
The difficulty faced by programs such as REAL and articling students wanting to practise in small towns is that many of the existing lawyers in underserved smaller or rural areas have moved into semi-retirement as the greying of the bar gains momentum.
“They are winding down their practice for whatever reason,” she says.
The average age of B.C. lawyers is approximately 50, according to REAL.
“But in smaller communities and rural areas, the age is significantly higher with the average age in many communities in the 60s (with some as high as 70 years old),” a fact sheet points out.
McCue says the Law Society of British Columbia requires students have full-time supervision. One way to ensure that, but work within the reality of the demographics occurring in communities, is to find lawyers willing to share a student. McCue says she is also open to hearing from lawyers who want to share a third-year student looking to article so she can help in bringing those lawyers together.
Annother scenario ripe for student sharing is where one lawyer does mainly litigation while another is a solicitor and each party might not feel they are giving a student the well-rounded practical experience a student should have.
“But, we put them together, it is a marriage made in heaven,” she says.
There are approximately 11,000 B.C. practising lawyers in the province but 86 per cent are located in Victoria, Vancouver, and New Westminster. The REAL program has produced a list of B.C. communities considered high-need and requiring lawyers.
LSBC statistics estimate there is one lawyer for every 450 people on average in the province. But, in smaller or rural communities that figure is one lawyer for every 1,000 persons.
The REAL program’s high-need list of communities (available here) includes towns where there is less than one lawyer per 1,000 residents. McCue says in some communities, the figures can be as low as one lawyer for 10,000 people.
McCue said that the REAL program focuses on second year students, providing funding for lawyers to take on the students; however it can provide information and support for third year students looking to article in a smaller non-urban area as well.
McCue encourages first-year students to visit smaller communities in need of lawyers so they have an idea of the lifestyle and opportunities that such a community can offer.
She encourages second-year students, and articling students, to also visit communities and talk to members of the legal community there. She says often rural lawyers want to meet students in person before hiring them to determine if they will fit into the firm.
She says over time, the REAL program has become more selective in its choice of candidates as is now focusing on retention rather than simply placement because of the growing need to provide lawyers in these high-need areas.
A total of 100 students have been placed since the program began but not all have stayed in smaller communities.
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The Law Society of Upper Canada’s governing body will vote on approving a new mental health strategy at its monthly meeting tomorrow.
|Former OBA president Orlando Da Silva calls the LSUC’s mental health strategy ‘leadership’ not ‘lip service.’ (Image: Shutterstock)|
The proposed strategy also recommends looking into adopting diversion discipline programs for lawyers and paralegals with mental health issues. In Nova Scotia, for example, the barristers’ society’s Fitness to Practise program creates a separate hearing panel for licensees who suffer from mental health issues.
If the mental health strategy is implemented, the law society will also consider conducting capacity hearings, which determine whether a lawyer is mentally fit to practise law, in the absence of the public.
“The regulator is not an expert in mental health and cannot treat or remedy the illnesses or addictions of its licensees. It should, instead, have in place tools that will allow for diversion in the appropriate circumstances, with appropriate confidentiality protocols,” says the report.
In an e-mail to Legal Feeds, Doron Gold, staff clinician at Homewood Health, said he supports diversion programs and more discretion for capacity hearings.
“The irony we often face is that the people who most need help for issues that are not based in bad character or ill intention are the least open to admitting these conditions due to stigma and the fear that the regulator will brand them as unfit and beyond help,” said Gold.
“The more informed and discreet the regulator becomes around these issues, the better, and ultimately, more effective the process will be. We don’t want people who, if given access to appropriate assistance could practise well, avoid that assistance, and simply be labeled unfit or not entitled to practise,” he added.
Former Ontario Bar Association president Orlando Da Silva, who used his leadership at the OBA to bring attention to mental illness in the legal profession, says the proposed strategy is sign that the regulator has listened to advocates like him.
If the plan is implemented, “I think the law society will have succeeded in moving mountains,” says Da Silva.
“It will be a sea change in the way lawyers address their own mental health issues and it will be a sigh of relief for those who want to talk but are afraid to because of the stigma.”
Da Silva has spoken openly about his own struggles with mental illness, but “I had never expected to see a mental health strategy like this in my lifetime as a lawyer,” he says. “This doesn’t look like lip service to me; this looks like leadership.”
The proposed mental health strategy comes amid growing evidence that lawyers and other legal professionals may be at a higher risk of developing mental illness and addictions.
“The culture of and stressors on the legal professions raise barriers to openly addressing these issues for those who may be affected by them and those with whom they work and interact,” the law society report’s executive summary reads.
“The stigma surrounding mental illness and addictions, the too common confusion of diagnosis with impairment and the concerns that careers will be permanently and negatively affected by disclosure have a particular impact on lawyers’ and paralegals’ willingness to reveal such illness or addictions.”
If Convocations approves the strategy, the law society will provide “specialized training” for staff who interact with licensees on mental illness and addictions. Gold calls it a “fantastic idea” that’s long overdue.
“Note, for instance, the emphasis in the report on not assuming that unresponsiveness by a member under investigation amounts to ungovernability,” said Gold, who brought up this issue when he was consulted by the law society’s mental health task force.
“Often, unresponsiveness by members is simply overwhelming anxiety leading to avoidance of even opening law society correspondence. It is not ill intent but a kind of psychological paralysis.”
Also part of the strategy is looking into whether the law society should create a mental health model policy to educate law firms and other employers on the tools to promoting mental health and identifying “possible systemic causes within the legal professions’ culture and employment practices that engender or exacerbate these issues.”
Update April 28: The LSUC approved the new mental health strategy at its meeting of Convcation.
- There’s money to be gained for everyone in focusing on serving the public’s legal needs in a variety of ways
When asked if the legal profession can move into the future without external investment, Law Society of Upper Canada CEO Robert Lapper was unequivocal.
|Non-lawyer investment won't mean the end of the profession but it does mean more opportunity, according to the panel.|
He was responding to an audience question during a session on the new realities of practising law at The New Frontier of Legal Innovation summit held at MaRS in Toronto yesterday.
Lapper and Chris Bentley, the executive director of Ryerson Unversity’s Legal Innovation Zone and Law Practice Program, didn’t mince words during their panel discussion.
Lapper noted that while the discussion of alternative business structures is currently somewhat on the backburner at the LSUC, it’s still on the table. And he is quite insistent that for the law society to meet its responsibilities of regulating in the public interest as well as ensuring access to justice, that the profession is going to be forced to open up so non-lawyers can invest in and provide legal services to the public.
“We haven’t got the balance right yet. We are late to the party,” he said. “Our regulatory system is largely still a 19th century model of a sole practitioner with a quill pen in a country law office.”
Bentley’s view is equally unambiguous: “Within 18 months I see one province opening up to ABS and then it’s game over for everyone else.”
There is going to be “an economic reality that is going to require investment by non-lawyers” being driven by innovators and entrepreuners who don’t want lawyers to control what they’re doing, he said.
And they are the ones who are going to start addressing the 85 per cent of Canadians’ legal needs that aren’t being met.
“Where is the duty and obligation to start providing services to those 85 per cent?” asked Lapper.
Bentley said, “We’re leaving the age of the provider and we are all part of the age of the consumer.”
Consumers want solutions, transparent approaches, price certainty, and affordability but “we have delivered process, complexity, uncertain price, lack of affordability,” he said.
Getting there is not that hard, he pointed out. There’s also money in it.
“What is missed by most lawyers is that many of those people have money. They can afford some legal solutions — it it was affordable and looked like a legal solution,” said Bentley. “They don’t want to pay for process.”
He added, “I’m not sure there’s an appreciation of how much money is on the table for lawyers. How much the opportunity is for individual lawyers and how quickly that is going to be filled by others if lawyers don’t do it.”
And technology is a big part of what can drive change, they said.
Many solutions the public are looking for don’t necessarily involve courts but will still require legal assistance. Bentley agreed technology can boost access to justice but it doesn’t mean the end of lawyers.
He pointed to online dispute resolution that is being piloted in British Columbia and added England is also doing it, particularly in family court.
“Out of court resolution does not mean no lawyers,” Bentley told the packed room.
That can mean dealing with issues both before and outside of court. There are solutions that are relatively easy, he said, including mandatory information that is provided by the courts; an easy screening process to move people into streams; and even a triage system.
“You can change positively the outcome in the family court for more than half of the people within 90 days,” he stated. “I call on the law society to take the lead on this and push it as hard as we can.”
Lapper responded that they are in “violent agreement” about the need for change, noting the LSUC along with the Ministry of the Attorney General and former chief justice Annemarie E. Bonkalo are looking into the scope of practice and more.
“What we hope will come out of that is what info should we have at the start of a family law issue and who should and could provide it,” he said.
Part of the problem, said Lapper, is lawyers “get a bit afraid of doing that” because they realize there are many pieces that might not have to be done by lawyers and that’s frightening.
As Bentley noted: “Law is not so different as we like to think. We refused to look at law as the provision of service or information. We have treated it as journey that you have to pay for each step. We need to reinvision it and how the consumer gets the results.”
For more on the lively discussion about the future of law, technology, and innovation from The New Frontier of Legal Innovation Summit, check out the #lextech16 hashtag on Twitter.
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Protecting the safety of women should take priority when there is an accusation of sexual misconduct in the health profession, the British Columbia Court of Appeal has ruled.
|‘We are pleased that the Court found that women’s allegations of sexual misconduct must be taken seriously,’ says Raji Mangat, director of litigation for West Coast LEAF.|
On Monday the B.C. Court of Appeal issued its decision in Scott v. College of Massage Therapists of British Columbia in a case that has implications for other regulated health professions. It provides some clarity around when and what circumstances might be appropriate to apply interim conditions on a practitioner involved in an accusation of sexual misconduct pending a disciplinary hearing.
In the case, the complainant alleged that her massage therapist engaged in sexual misconduct during a massage therapy session.
The College Of Massage Therapists of British Columbia received a complaint on Oct. 8, 2014 from a female patient who alleged that Trevor James Scott, a massage therapist, had masturbated and put his penis on her left wrist during a session. The patient did not make any complaint to Scott and did not say anything about the incident to him or anyone else at the clinic.
The patient did go to police immediately after her massage therapy session and told them she heard him unzip his pants and “play with his penis” while massaging her with his other hand. She said he unzipped his pants a second time and put what she believed to be his penis on her wrist.
She told police she did not want charges — she simply wished to have the complaint on file in the event that future complaints were received. The police took no action but on Oct. 10 sent a report to the College of Massage Therapists Inquiry Committee.
Scott denied any sexual misconduct, said he had no criminal record for sexual assault and no previous complaint history. He sought reconsideration.
The committee conducted an ex parte hearing and found the alleged conduct to be “extremely serious” and identified a “lack of measures” to protect the public.
After identifying a risk to public safety, the College of Massage Therapists of British Columbia placed interim restrictions on Scott’s practice pending a full disciplinary hearing.
The B.C. Supreme Court later set aside those interim restrictions, saying that it was unreasonable for the College to have found a risk to the public based only on the complainant’s report of what took place. The College then appealed that decision to the BCCA, and the case was heard in January.
The Court was called upon to determine how governing bodies of health-care professionals should respond to such allegations in order to protect the public.
West Coast Women’s Legal Education & Action Fund intervened in the case to argue that women’s allegations of sexual misconduct must be taken seriously and require urgent action to protect the safety of patients while a complaint is under review.
“We are pleased that the Court found that women’s allegations of sexual misconduct must be taken seriously,” says Raji Mangat, director of litigation for West Coast LEAF. “Women are disproportionately the victims of sexual assault. Therefore, allowing the bodies we trust to govern health-care professions to place interim restrictions on health-care practitioners while an investigation is conducted is the best way to protect women and ensure equal and safe access to health care.
“In our view, the interests of women and other vulnerable people being able to access health care safely and not feel potentially some risk of something happening is greater than this interim period of time allowing this individual to practise without conditions,” says Mangat.
Mangat says there were “some troubling elements” of the B.C. Supreme Court judgment around what corroboration would be required for determining instances when the interim conditions could be put on a massage therapist’s practice, as well as “antiquated ideas” around what is an ideal response to sexual misconduct.
The implications of the case go beyond the College of Massage Therapists, as the case clarifies the standard of evidence required for many health professions’ governing bodies to act quickly in the public interest.
The Court of Appeal found that in order to impose interim conditions on a massage therapist who is subject to a complaint, the Inquiries Committee has to conclude that there was a prima facie case to support the allegation and an interim order is required to protect the public.
The Court of Appeal also confirmed that the Inquiries Committee is not to conduct a mini-trial to weigh the evidence, but the registrant may give evidence that the allegation is “manifestly unfounded or manifestly exaggerated” and to the impact of the interim order on the registrant.
The case creates a “very high threshold” for regulated health professionals seeking to challenge a proposed interim suspension or interim conditions, in the face of a complaint alleging serious misconduct, such as sexual abuse, says Lad Kucis, partner and co-chairman of the health law group with Gardiner Roberts LLP in Toronto.
“In such circumstances, the regulated health professional has to demonstrate that the complaint is ‘manifestly unfounded or manifestly exaggerated’, which in most instances, would be extremely difficult to accomplish,” he says.
“Although the Court of Appeal states that an interim order is to be used only in extraordinary cases, significant discretion is given to the Inquiries Committee in making the determination, which if exercised, is almost impossible for a health professional to challenge,” he says.
Mangat says there is a balance that has to occur in cases like this.
“The court also said if the inquiry committee gets evidence from the individual that the complaint is manifestly unfounded or exaggerated, they can take that account as well,” she says. “That puts a check on things if you think it’s going to open some sort of floodgate. We know sexual misconduct is vastly underreported, so we don’t think it’s a founded concern, but there is recognition in this decision that there are significant consequences for the health-care professional as well.”
Scott's formal disciplinary hearing is in process and is expected to finish this month. The Court remitted the issue to go back to the inquiry committee to decide how they would like to proceed in light of the passage of time since the complaint was first flagged and the conditions imposed.
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The new dean of the McGill University Faculty of Law says the school will be introducing a new property course as part of the school’s effort for program renewal.
|Robert Leckey takes over the post of McGill University’s law school dean in July.|
Leckey has been part of McGill’s faculty of law in Montreal since 2006, and is known for his research and teaching in family and constitutional law. He’s also the director of the Paul-André Crépeau Centre for Private and Comparative Law, and chaired the McGill equity subcommittee on queer people.
“The transsystemic teaching where multiple legal traditions are taught together, we’re actually pushing it further still,” says Leckey.
Take a new property course Leckey says will be “totally unique in the country.” Until now, he says there’s been “a common law property course and a civil law property course for Quebec, and that’s going to be integrated in a new property course that will have common law, civil law, but also make Indigenous legal traditions more prominent, as well.”
“It’s an important moment as we and other law faculties respond to the recommendations of the Truth and Reconciliation Commission, I think it’s really exciting we have this property course in development,” he says.
Leckey says he plans to meet with as many stakeholders as possible this summer to chart the way forward for the law school.
“The listening is a really crucial part of the start of the mandate for me,” says Leckey.
As of October 2015, the school had more than 680 students in its undergraduate program, more than 90 in the masters program, and more than 60 in the doctorate program. There are 44 full-time faculty, who are tenured or streamed for tenure.
Leckey says competition for research dollars and graduate students is fierce, and the school will be making effort to communicate its strengths.
“I think the scholars here do amazing research, we have internationally recognized scholars, and I think we can clarify and communicate better what the research strengths of the faculty are,” says the incoming dean.
Leckey says the school is known for areas including international and domestic human rights, private law and comparative private law, dispute resolution, civil procedure arbitration, and trade and international governance.
“It’s a very competitive environment, where we’re competing with other people with clear brands, and I think we can clarify ours further,” he says.
Schools, especially in Quebec, face challenges regarding funding, he says.
“The pressure is increasing because the university’s own resources are less and less, particularly in Quebec these days, we need to be bringing in outside research money,” he says.
“And so, there’s a provincial research funding council, there’s a national one in Ottawa, there are opportunities to partner at times with other kinds of organizations, but, in order for us to have the money to hire students, to travel to do our work, people need to be bringing in grants, and so, it is increasingly competitive because typically those governmental envelopes have not been growing over the past years, so part of the task is to be bringing in resources.”
Tuition is frozen and is “very low,” he notes.
“McGill is subject to the Quebec government’s funding formula, and yet, we’re trying to compete on the international stage,” he says.
Leckey says he plans to continue his research, and will look how law reform has affected unmarried couples.
“People tell me the deanship will reduce my research time, but I’m certainly going to continue active as a researcher and do as much as I can,” he says.
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