The Law Society of Upper Canada has sent a "very unhappy message to the bar" with its decision finding Joe Groia engaged in professional misconduct, according to his lawyer.

The comment from Earl Cherniak comes as a law society hearing panel ruled on Groia's actions in the

Joe Groia is 'very disappointed' with the ruling, his lawyer reports.

proceedings against former Bre-X Minerals Ltd. vice chairman John Felderhof. It found "Groia's attacks on the prosecution were unjustified and therefore constituted conduct that fell below the standards of principles of civility, courtesy, and good faith required by the Rules of Professional Conduct."

"There's a very unhappy message for counsel," says Cherniak, who noted much of the evidence against his client stemmed from Court of Appeal proceedings related to Felderhof's matter during which Groia wasn't a party. While the appeal court was highly critical of Groia's aggressive tactics against the prosecution during Felderhof's trial, Cherniak notes the comments were in obiter and that his client had no right of appeal since he wasn't a party.

While the court ultimately acquitted Felderhof, the proceedings launched by the Ontario Securities Commission involving accusations of insider trading and issuing false or misleading statements over his sale of $83 million worth of shares in the company were particularly acrimonious with lawyers on both sides battling over issues such as disclosure. An exchange noted by the law society panel gave some of the flavour of the acrimony during a discussion about the documentary record. At one point, Groia told the court:

"When is the Crown going to accept the fact that they are prosecuting a case? Why do they stand before this court and continually whine about how unfair it is that the law in this country says if you want to prosecute Mr. Felderhof, you must do so in accordance with certain fundamental rules. . . . They don't care about the fact that when they stand up and say let's file it all, what they are trying to do is to backfill their case. They know they can't prove those documents and they hope that by wearing down the defence and making it impossible for the defence to represent Mr. Felderhof, they are going to get some concession from us that lets them dig themselves out of this huge hole they are in."

The case sparked intense debate among the bar about the limits lawyers can go to in defending their clients. Groia himself has emphasized the need to vigorously defend his client and argued the law society matter would send a chill to lawyers when it comes to how they handle their cases. It's an issue that's a concern for Brent Cotter, a professor and former dean of the College of Law at the University of Saskatchewan, who tells Legal Feeds he doesn't believe the panel "gave sufficient consideration to 'civility chill,' the risk that lawyers may moderate 'zealous advocacy' out of concern that it will be interpreted — and sanctioned — by the law society as 'incivility.'"

The law society panel, however, saw the issue quite differently. "Our system of justice is based on the premise that legal disputes should be resolved rationally in an environment of calm and measured deliberation, free from hostility, emotion, and other irrational or disruptive influences," wrote panel chairman Tom Conway.

"Incivility and discourteous conduct detracts from this environment, undermines public confidence, and impedes the administration of justice and the application of the rule of law. Put differently, incivility can compromise trial fairness and, in the context of a criminal trial in particular, the accused's right to a full answer and defence."

Conway went on to reject Groia's notion about compromising vigorous advocacy when he wrote that "the Rules of Professional Conduct serve to ensure a rational, calm environment, which leads to better and more timely decisions. Thus, when lawyers observe the rules governing professional conduct, civility enhances, rather than detracts from, a more efficient justice system, prevents unfair outcomes, and promotes greater access to justice for accused persons."

For his part, Cotter, who emphasizes he's in favour of civil and moderate dialogue, says he doesn't believe the case against Groia was very strong "given the overall context of a very bitterly fought trial in which, while the trial judge was occasionally critical of both counsel and often critical of Mr. Groia, did not cite him or, as far as I can tell, describe his behaviour as 'uncivil.' This issue is so clearly within the courts' oversight of lawyers, so if the court did not feel the need to address it with sanctions, ought the law society to be doing so?"

The law society has yet to set a date to hear submissions on penalty. Cotter believes the panel should restrain itself on that question. "Any penalty more serious than a reprimand would undoubtedly send this quite troubling message," he says in reference to the question of a civility chill.

Cherniak, meanwhile, notes Groia is "very disappointed" with the decision. "He remains of the view that his conduct of the Felderhof trial and the events leading up to it was justified and necessary by the way the prosecution against Mr. Felderhof was conducted by the Ontario Securities Commission in order to protect the rights of [his client], who was subjected to an unfair, and as the events showed, an unwarranted criminal prosecution.

"Fairly read, the evidence cited by the panel in support of its reasons supports Mr. Groia's innocence of the Law Society charges against him and not the conclusions of the panel."

Ontario’s process for renewing the appointments of deputy judges of the Small Claims Court does not infringe the principles of judicial independence, the Ontario Court of Appeal has ruled.

Writing in the court’s endorsement of Superior Court Justice Kevin Whitaker’s November 2011 order, Court of Appeal Associate Chief Justice Dennis O’Connor determined the current reappointment process for Ontario’s more than 400 deputy judges does not violate the principles of judicial independence and complies with the principle of security of tenure.

“We agree with the application judge that having regard to the nature of the jurisdiction of the Small Claims Court and the presumption that a regional senior judge will act in the best interest of the administration of justice, that a reasonable and well-informed observer would conclude that the deputy judges and the Ontario Small Claims Court are sufficiently independent so as to satisfy constitutional requirements,” wrote O’Connor in the court’s endorsement.

The Ontario Court of Appeal heard oral arguments from the association and the attorney general in Toronto on June 18. O’Connor and justices Marc Rosenberg and Janet Simmons presided.

The Ontario Deputy Judges’ Association had argued the reappointment process undermined the institutional independence of the Small Claims Court in a way that a reasonable person, fully informed, would not consider it to be independent.The attorney general argued that the courts had consistently ruled its judicial members could be trusted and independence was not an issue.

As of last year, there were more than 400 deputy judges across 90 locations in Ontario. More than 80 per cent of sitting deputy judges have served more than one term and have been reappointed.

The regional senior judge, having the approval of the attorney general, appoints each deputy judge initially. However, the regional senior judges control the reappointment process thereafter and don’t have to provide reasons as to why they reappoint a deputy judge.

Competition commissioner Melanie Aitken announced today that she will leave her position on Sept. 21, 2012.

Aitken was appointed in 2009 and was the main force behind transforming the way the Competition Bureau operated and raised its profile in the minds of Canadians.

Called a formidable force at the bureau, competition lawyers were often critical of the way she seemed to push straight legal parameters in favour of championing the “little guy” and used the platform to spend more time focused on consumer issues as opposed to the bureau’s established mandate.

She kept lawyers busy with what some say was a high degree of unpredictability.

“She made things very difficult to predict. A touchstone of the bureau has been predictability and that’s important so you can advise clients so they know what to expect, but there was a large element of unpredictability with her as she took personal interest in certain files,” says one senior competition lawyer with a large national law firm.

In her time at the bureau, Aitken took on issues such as the real estate industry over its multiple listing service and Visa/Mastercard’s loyalty card program.

Interest now turns to who her successor will be, the course he or she will chart, and whether the government decides to choose someone with a similar approach.

Aitken has held a variety of senior positions at the Competition Bureau since joining it in 2005 as assistant deputy commissioner of competition and was appointed senior deputy commissioner in May 2007. She served as interim commissioner from Jan. 12, 2009, to Aug. 4, 2009, when she was appointed as commissioner for a five-year term.

Prior to joining the bureau, Aitken was a commercial litigation partner at Bennett Jones LLP. From 2001 to 2003, she worked as senior counsel at the Department of Justice on secondment from her partnership at Davies Ward Phillips & Vineberg LLP in Toronto.

In the meantime, the bureau announced last week that Kelley McKinnon would be joining it as senior deputy commissioner of the mergers branch for a two-year period beginning on Aug. 7, 2012. She’ll take a leave of absence from Gowling Lafleur Henderson LLP, where she is a partner and head of the firm’s securities litigation practice.

Regina lawyer Tony Merchant is appealing the Law Society of Saskatchewan’s decision to suspend him for three months after finding he breached a court order and counselled a client to act in defiance of a judge’s order.

According to the Regina Leader-Post, Merchant filed his appeal yesterday. The suspension is to take effect June 30 unless Merchant seeks an order to put it on hold pending the appeal, the Leader-Post reported.

A law society hearing committee had earlier found Merchant guilty of conduct unbecoming a lawyer for breaching a June 4, 2003, order that required him to pay certain settlement proceeds due to his client, M.H., pending determination of a related family property issue. It also found him guilty of conduct unbecoming by counselling or assisting M.H. to act in defiance of a court order.

In a June 1 decision, the hearing committee considered a range of factors in determining Merchant’s penalty of a three-month suspension. Among arguments for a lesser penalty, Merchant sited the lag time between the complaint about him on Nov. 1, 2004, to the beginning of the hearing in August 2011. Merchant’s counsel also cited, among other things, his co-operation with the law society, his great record of accomplishment, and the lack of relevance of his previous findings of guilt for conduct unbecoming a lawyer.

On the subject of delay, the committee decided it could take that factor into account in mitigating the penalty. But it gave less weight to it given there was “no lengthy period of unexplained delay.”

“Most of the delay in this case is attributable to the legal battle that ensued when the law society sought the member’s complete file for review and the member and his client opposed the application based on concerns pertaining to solicitor and client privilege,” wrote committee chairman Sanjeev Anand. “Although the member and his client were successful in opposing the application at the Court of Queen’s Bench, the law society successfully appealed to the Saskatchewan Court of Appeal and obtained access to the complete file. A subsequent application for leave to appeal to the Supreme Court of Canada by the member and his client was ultimately denied.”

In the end, the committee found a number of aggravating factors justifying the three-month suspension. They included the fact that Merchant “acted to breach the court order in a calculated manner;” that the breach of the court order “had the potential to irreversibly and unfairly dispose of money held pursuant to the order for the benefit of an individual who was claiming arrears of child support;” and that Merchant “chose to let his client remain in harm’s way on two contempt applications instead of revealing the true nature of the transactions that had occurred.”

The committee suspended Merchant on the two counts concurrently. Besides the suspension, he’s to pay almost $29,000 in costs. Legal Feeds was unable to reach Merchant for comment this morning.

Canada

Head of federal inquiry to wait before challening MacKay over Langridge docs, Ottawa Citizen

B.C. man accused of murdering, dismembering roommate won't testify, The Province

Ontario cocaine probe results in 38 suspects charged, The Globe and Mail

United States

Supreme Court set to deliver ruling on Obama's healthcare overhaul, Reuters

Appeals court says jurors can take indictment home, Reuters

International

New Zealand court rules Megaupload search warrants illegal, Reuters

German court bans circumcision of young boys, Reuters

 

A Toronto lawyer sued by the Aga Khan has been cleared of assault after an incident at a Markham, Ont. mosque.

Alnaz Jiwa tells Legal Feeds it was “a relief” when Ontario Court Justice William Gorewich found him not guilty of assault with a weapon on May 30, after 18 months with the case hanging over him.

“Unfortunately I could not respond and many people, in the profession as well as in the community believed the false news,” Jiwa says.

The complainant, Mansurali Kara, required stitches for a cut on his head after he was struck by a plate in a bag thrown by Jiwa following the Dec. 30, 2010 incident. But Gorewich found Kara was the aggressor, punching Jiwa first.

“I accept the explanation of Mr. Jiwa that he instinctively raised his hand, which was holding the plate of food and threw it at Mr. Kara who had, in effect, attacked him. Mr. Jiwa said it was self-defence, it was a reflex action, it was instinctive,” Gorewich said in his verbal reasons. “I accept Mr. Jiwa’s actions were instinctive and designed to ward off the advance by Mr. Kara.”

The fallout from Jiwa’s copyright dispute with the Aga Khan, which finally ended with the lawyer and a co-defendant ordered to stop selling copies of the spiritual leader’s speeches, was at the heart of the incident, according to Gorewich.

“I find on the evidence that Mr. Jiwa’s defence of this matter caused a number of people in that particular religious community to be offended, as the defence to the action was seen as an affront or challenge to the authority of the Imam. I find there was hostility directed to Mr. Jiwa by Mr. Kara on December the 30th, 2010 as a result of what was perceived to be a challenge by Mr. Jiwa to the authority of the spiritual leader,” the judge said.

Jiwa was at the mosque to offer his condolences to a bereaved friend. He was approached in the prayer room by Kara, who told him he should leave, says Gorewich’s decision.

After the verbal altercation in the prayer room, an agitated Kara was misleadingly warned by a friend that Jiwa was waiting for him outside the room. According to Gorewich, that put Kara “on guard for what he perceived to be an imminent, impending threat.”

When the pair encountered one another again, “I find that Mr. Kara, thinking Mr. Jiwa was going to strike him, moved towards Mr. Jiwa and struck him first. I find Mr. Kara’s hand was injured as he hit his hand on the pillar near where Mr. Jiwa was standing,” Gorewich wrote. “[Jiwa] did not initiate the verbal confrontations, he did not initiate the physical altercation with Mr. Kara, and he responded instantly to the advance of Mr. Kara in the fashion he described, instinctively and in self defence, and using sufficient force to repel the attack.”

Canada

Camille Cleroux gets life in prison for 'stomach-churning' murders, The Province

Two Alberta men face charges in cross-border cocaine trafficking, Calgary Herald

Supreme Court to hear case of N.S. woman acquitted in plot to kill abusive husband, The Globe and Mail

United States

High Court gives juvenile murderers hope of reduced sentences or freedom, Reuters

Appeals court upholds EPA greenhouse gas rules, Reuters

International

EU court reduces Microsoft antitrust fine by 4.3 per cent, Reuters

Saudi court jails al-Qaida group for plot against U.S. forces, Reuters

After a nine-year legal battle, the Superior Court of Québec’s Justice Daniel H. Tingley has ordered Dunkin’ Brands Canada Ltd. to pay plaintiffs $16.4 million in damages and costs — exactly what was claimed by the franchisees.

The judge calls the case ‘a sad saga as well of how a once successful franchise operation . . . fell precipitously from grace. . . .’ (photo: Shutterstock)

In his ruling in Bertico Inc. v. Dunkin’ Brands Canada Ltd., Tingley found in favour of Dunkin’ Donuts’ former franchisees, who were suing the franchisor for incompetence, negligence, lack of support and assistance, as well as flagrant breach of the contract entered into between the franchisor and its franchisees. The latter applied, in particular, to protect and enhance the brand between 1995 and 2005 — a period when Tim Hortons and other coffee franchises in the province were rising in popularity.

“This is one of the longest franchise litigation battles, probably in Canadian history, and definitely in Quebec franchise history, and I think it sends a strong signal,” says Frederic Gilbert of Fasken Martineau DuMoulin LLP who acted for the plaintiffs. “Not only franchisors but franchisees in the franchise industry in Canada should acknowledge this decision and say, ‘how does this impact my business?’”

Dunkin’ Donuts has indicated it intends to appeal the decision.

In his remarks Tingley stated: “It is a sad saga as well of how a once successful franchise operation, a leader in its field — the donut/coffee fast food market in Quebec — fell precipitously from grace in less than a decade; literally, a case study of how industry leaders can become followers in free market economies.”

While there used to be more than 200 Dunkin’ Donut stores in Quebec, there are now less than a dozen.

At one point Dunkin’ Donuts wanted its franchisees to move up their renovation deadline under the contract and a promise was made that if the franchisees put money in earlier than stipulated it might help them compete with Tim Hortons. Dunkin was supposed to contribute $40 million, half of which would come from the franchisees, but it didn’t fulfill its end of the deal.

After 72 days of testimony, Tingley determined that the franchisees were not poor operators. “They were amongst the best and most successful in the Quebec ‘réseau.’ Many of the owners operated several stores.”

The case is unique says Jennifer Dolman, a commercial litigation partner with Osler Hoskin & Harcourt LLP, because the judge treated it as a fundamental breach of the contract.

“That’s very rare. I can’t think of another case like it. Franchisees do try to take the position they’ve had a fundamental breach but that’s really for total failure of consideration when one of the contracting parties is not getting any benefit from their bargain,” she says.

However, Dolman says it is important that the judge stipulated that franchisors are not entirely the guarantor of success.

“A franchisee enters into a franchise agreement with the expectation that they are going to be somewhat successful and make that choice to go into a franchise as opposed to hanging up their own shingle because there is a system to rely on. In this case though Tim Hortons was coming on in a big way and Dunkin’ was not supporting its franchisees, so facing competition, one by one, they started closing. Whenever franchisees close franchisors want to avoid that because it’s not good for their reputation.”

Dolman says the leading case in Ontario is Shelanu Inc. v. Print Three Franchising Corp. but unlike the Dunkin’ Donut case, the judge did not find there was a fundamental breach of contract.

“The trial judge in that case felt there was a fundamental breach but it went to the court of appeal and the court said no, because even with a litany of complaints the court couldn’t find a substantial failure of consideration under the contract because the franchises still had the right to use the mark, the system and the brand,” she says.

In most cases, even if franchisees are unhappy, Dolman says there is still value to the brand they are using.

“In this case the judge felt what was crucial was the brand and this brand had been completely devalued in the Quebec market and franchisees had very little to show for their investment.”

Canada

Scouts Canada abuse review shows need for accountability: lawyer, CBC

Federal Court hears motions on overturning election results due to robocalls, Montreal Gazette

Man gets life sentence for stabbing elderly neighbour to death, Toronto Star

United States

Supreme Court splits verdict on Arizona immigration law, Reuters

Supreme Court says young murderers should get chance of parole, Reuters

International

Zambia court overturns suspension on leading opposition party, Reuters

Ireland's Sean Quinn guilty of contempt, facing jail time, Reuters


 

Superior Court Justice Michael Tulloch will become the first black judge to sit on the Ontario Court of Appeal after the federal government named him to replace Justice Harry LaForme.

Tulloch, who sits on the Superior Court bench in Brampton, Ont., has been a judge since 2003 following a career in criminal law. As for LaForme, he becomes a supernumerary judge on June 30.

In addition, the federal government has appointed four lawyers to the bench at courts across the country.

In Saskatchewan, Neil Turcotte joins the family division of the Court of Queen’s Bench in Saskatoon. He replaces Justice R.S. Smith, who joined the general division on June 19. A lawyer with MacPherson Leslie & Tyerman LLP since 1999, Turcotte practised mainly in the areas of wills, estates, and civil litigation with expertise in family law.

In Ontario, the federal government has named Edward Morgan to the Superior Court bench in Toronto. He takes the place of Justice Arthur Gans, who became a supernumerary judge on April 1. Morgan, a full professor at the University of Toronto Faculty of Law since 2008, previously practised with Davies Ward & Beck. His main areas of practice were commercial and constitutional litigation as well as private international and human rights law.

In New Brunswick, Stewart McKelvey is losing Tracey DeWare to the Court of Queen’s Bench in Campbellton. She replaces Justice G.J. Young, who became a supernumerary judge on Feb. 25. DeWare had been with Stewart McKelvey since 2005 and began her law career in 1994.

At the Federal Court, Department of Justice lawyer Catherine Kane replaces Justice S.J. Simpson, who became a supernumerary judge on June 10. Kane had been counsel with the department since 1982. Her roles have included senior general counsel in the criminal law policy section.