Legal Feeds Blog
A judge has ruled against a Vancouver lawyer for alleging the judge did not review a file related to an immigration case. The lawyer, Lawrence Wong, was ordered to pay $1,000 by Federal Court Justice Richard Bell.
|An immigration lawyer tried to claim a judge hadn’t looked at his file before dismissing it because there were no markings on it.|
The associate said in a deposition that there was “no marking, sticky note, hand writing, bent corner, crease or any other discernible sign of them having been read,” and also said he saw no signature of a justice of the federal court.
“The original position of the applicant, denied at the oral hearing of this matter . . . is that I did not read the file. Of course, if I did not do so, such conduct would have constituted a serious violation of my oath of office,” said the ruling, in Liang v. Canada (Citizenship and Immigration).
At a hearing May 20, Wong allegedly backed away from saying the judge hadn’t read the file, and instead said it may have been put in the wrong place.
“Essentially, Mr. Wong contended that the case was so meritorious that any reasonable judge would have granted leave and Registry staff must have placed a ‘leave granted’ file in the ’leave dismissed’ pile. In essence, Mr. Wong contends either serious wrongdoing on the part of one of Her Majesty’s justices or serious negligence on the part of the Registry staff,” said the ruling.
Bell says the allegations were wrong on a number of counts, including the fact the allegations were founded on a notion that a judge would mark a publicly accessible file. He also said it “seems to presume a justice will make markings on court documents rather than in a bench book.”
The judge says in response to the allegations, he consulted the registry in Ottawa, and located his signature and date on the document in question, as well as his initials.
“In his written submission, which constitutes a public document, Mr. Wong, an officer of the Court, states that a review of the ‘court file, the physical file covers and the actual files show there is no written record of physical trace that will give the appearance that the file has been reviewed by a judge.’ This public statement made by an officer of the Court is inaccurate. The hand written signature of a judge, the hand written notation of the date and the identity of the Court constitute prima facie proof the file has been reviewed by a judge,” noted the ruling.
Bell called the allegations “an attack upon the integrity of the Court” that were “based upon speculation and innuendo and an inadequate verification at the Registry,” and ordered Wong to personally pay $1,000.
“Nothing was overlooked. Registry staff did not place the file in the ‘wrong pile.’ This motion for reconsideration is dismissed,” said the ruling.
Patricia Virc, a lawyer with Steinberg Title Hope & Israel LLP, says it was “kind-of a shocking thing for a lawyer to do” and she was “not surprised” costs were ordered against the lawyer personally.
“This was a very misguided approach to challenging a decision,” she says.
Robin Seligman, a senior immigration lawyer with Seligman Law PC, said this was “a fair decision by the court and registry.”
“It was frivolous and inappropriate for the lawyer to suggest that the judge had not read the file,” Robin Seligman told Legal Feeds.
Wong could not be reached for comment Tuesday.
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|Anyone wanting to flip through the physical pages of the Ontario Reports will have to fork out $225.|
Some lawyers say they still like flipping through the paper version of the ORs for the latest news on who is doing what and what jobs are available. With LSUC and insurance fees hovering around $5,000 a year, some are questioning the extra charge.
According to law society spokesperson Susan Tonkin, 48,000 lawyers and paralegals receive the electronic version of the Ontario Reports at no cost.
Last week, those who still are receiving the hard copy received an e-mail notifying them that after July 1, licensees and others who wished to continue to receive a hard copy, can make arrangements and pay a fee of $225 directly with LexisNexis. Otherwise, they’d be getting the digital edition e-mailed them to each week, at no additional charge.
Tonkin says the change to charging for the ORs "is in keeping with the preference of most readers, who are already accessing the digital version of the Ontario Reports.”
The change also reflects declining advertising revenues and was approved in February 2016.
LexisNexis will be communicating directly with readers about this change.
There is also an iTunes app for the weekly Ontario Reports.
Update 4:30 pm: More information added on the reason for the changes.
Ronald Caza has never been one to shy away from a fight when it comes to defending the rights of Canada’s linguistic minorities.
|Members of Ontario's legal professions were recognized for exceptional career achievements and contributions to their communities at the annual Law Society Awards ceremony held May 25, at Osgoode Hall.|
It’s one of many cases Caza has taken over the years that have focused on protecting the institutions of linguistic minorities.
Caza, who is a partner at CazaSaikaley LLP, was one of 14 legal professionals the Law Society of Upper Canada honoured Wednesday. Caza was given a Law Society Medal.
One of Caza’s most significant cases was a fight to keep the francophone Montfort Hospital open in Ottawa when the government of former Ontario premier Mike Harris was looking to close it down.
At the time, Montfort was the only Francophone teaching hospital in Ontario.
“There was a constitutional obligation to protect linguistic minorities, which included the protection of their institutions,” he says.
The Divisional Court and later the Ontario Court of Appeal determined the decision to close Montfort was unconstitutional as the hospital was an essential institution of the francophone community and shutting it would cause harm.
Since Montfort, linguistic minorities across the country have challenged governments’ decisions to close or impact their institutions, Caza says. The Montfort case set a number of precedents and also resulted in a number of Supreme Court decisions, which confirmed the constitutional rights of linguistic minorities, he added.
“It’s all about ensuring that the francophones across Canada outside of Quebec continue making efforts to preserve their language and culture and that they don’t basically assimilate,” he says.
Other honourees awarded a Law Society Medal included Peter Rosenthal, a social justice lawyer who is also a professor emeritus of mathematics at the University of Toronto.
Over the years, some of the people Rosenthal has represented included homeless people, G20 protesters, and members of First Nations — and all on a pro bono basis. Rosenthal says he never asks to be paid for his work, unless the people he represents have legal aid funding.
He is currently representing the “Neptune Four” — a group of four black teenage boys who are suing the Toronto Police after they were stopped, questioned and arrested at gunpoint near their homes on Neptune Drive in 2011. They alleged the police acted out of racial bias.
Rosenthal first became interested in the law when he was arrested at an anti-Vietnam war protest in 1969. He became a paralegal for a couple of decades before eventually deciding to go to law school and was called to the bar in 1992.
“My interest in the law has been to promote social justice issues,” he says.
Rosenthal represented Miguel Figueroa, the former leader of the Communist Party of Canada, in Figueroa v. Canada (Attorney General), a case that successfully challenged part of the Elections Act that deregistered political parties if they had less than 50 candidates run in a general election.
The Supreme Court of Canada ruled in favour of Figueroa, which Rosenthal says was significant, as it would ensure supporters of small political parties could get tax deductions for financial contributions.
“It makes a big difference to the amount of support parties get financially,” Rosenthal says.
The Law Society also awarded its Laura Legge Award to Lisa Borsook, an executive partner at WeirFoulds LLP, and one of the first women named a managing partner at a large Ontario law firm.
Borsook was recognized for her work advancing the interests of women lawyers in Ontario. When she first became a managing partner, Borsook says she hoped it would show other women what they could achieve.
Borsook first became a managing partner in 2006 and has mentored many colleagues over the years. “I think it’s important women lawyers have role models,” she says, adding that when she made partner it sent a message to women in the legal profession that they can achieve positions of prominence in their firm.
“Whoever asks, I try and find the time for them,” she added.
Borsook says gender imbalance in the legal profession is a problem that is not going to solve itself and that women must push hard and take risks to achieve their goals.
“I look forward to a time when we don’t need to have an award to celebrate women’s advocacy for women, but I am so honoured to receive this award,” she said in a speech Wednesday.
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Frequently used legal phrases such as “subject to my client’s approval” are not meaningless boilerplate used by counsel to “protect their backsides.” To the contrary, these terms are meaningful stipulations of counsel’s limited authority that must be taken into account.
|Lawyer Andrew Brodkin says decision is a big relief for lawyers involved with negotiations.|
That’s one of the more important findings in last week’s ruling in Apotex v. Allergan, wherein the Federal Court of Appeal heard arguments from Apotex regarding a settlement that the company says it never actually agreed to.
The negotiation involved patents around gatifloxacin, an antibiotic sold in eye drops. Allergan alleged that Apotex had violated its patents, and a settlement between the parties would prevent Apotex from selling the drug commercially. In April 2012, both sides agreed to these terms, but the settlement didn’t mention the geographic scope of the deal.
When Apotex clarified that the settlement was limited to Canada, Allergan kept mum — neither agreeing nor disagreeing — and instead seemed to gloss over the issue with encouraging e-mails that suggested the parties “get the ball rolling” on formal documents.
That ball never got rolling, as Apotex felt that a major sticking point had not been resolved. Twenty-three months of negotiations followed, until 2014, when Allergan sent revised terms. Apotex’s counsel said they would “recommend” that their client accept the revisions, but never explicitly agreed to the offer on behalf of their client.
When Allergan went to Federal Court to have the settlement enforced, though, the court granted the motion, ruling that Apotex had already agreed to settle twice: first in April 2012, when basic terms (not including geographic scope) had been reached; and again in 2014, when lawyers stated that they would recommend the deal.
The motions judge was convinced that Apotex was holding up the settlement with non-essential issues. Moreover, the judge found that Apotex’s counsel were authorized to act on behalf of their client and that language around “recommendations” amounted to hollow statements used by counsel to “protect their backsides.”
Justice David Stratas, writing on behalf of a unanimous appeal court, disagreed on both points. The court found error with the lower court’s assessment of what was essential, which had relied on statements that Allergan had made about Apotex’s “fussing” and “wordsmithing.”
As the decision states, “. . . the Federal Court appears to have been distracted by Allergan’s subjective view of the importance of certain terms that had to be negotiated out, rather than keeping to an objective assessment of the matter from the standpoint of a reasonable businessperson.”
The subjective feelings of the parties were irrelevant, the court states. On the other hand, from the perspective of a reasonable businessperson, the geographic scope of an agreement was indeed an important matter.
“We must view the emails and drafts objectively from the standpoint of a reasonable businessperson, not subjectively,” Stratas writes. “Viewed in that way, the scope of the restrictions upon Apotex was not at all minor. It was a substantial part of the consideration that Allergan was to receive under the contemplated agreement.”
As for the “recommended” agreement in 2014, the court finds that, so long as advisers are clear about the limits to their authority, a client cannot be bound by suggestions made on their behalf:
“. . . counsel for Apotex stated that he did not have authority to bind his client; he would have to check with his client. So while Allergan was willing to agree to the draft that was circulated on January 13, 2014, Apotex’s position was unknown.”
Andrew Brodkin, the Goodmans LLP lawyer who represented Apotex before the appeal court, says the decision is a big relief for lawyers involved with negotiations.
“I received a number of calls after the [lower-court ruling] — people saying, ‘My god, how are we supposed to negotiate if we tell the other side that we don’t have formal instructions, and the court nonetheless finds that discussions carried out in that context result in a binding settlement?’
“That puts lawyers in a very, very hard spot,” he says.
If the courts were to dismiss conditional statements that express limited authority, such as “pending approval from my client,” it would be almost impossible to engage in open-ended negotiation.
“[The lower-court judge] just said that was careful lawyering,” says Brodkin, “but Justice Stratas and the rest of the panel, they came to the exact opposite view, which is that it’s the necessary language that you have to use if you’re a lawyer and you don’t have instructions.
“Lawyers have to be able to engage in negotiations without a fear that their negotiations will be treated as a binding contract.”
Human Rights Commission urges major reform in Ontario policing, The Toronto Star
The court of appeal has ruled evidence collected against an accused should be excluded if the police breached their Charter rights — regardless of whether the breach occurred before or after the evidence was collected.
|The ruling in Pino makes a subtle but important point in Charter litigation, says Howard Krongold.|
Howard Krongold, a partner at Abergel Goldstein & Partners LLP in Ottawa and counsel for Eneida Pino in the case, says the May 24 ruling is a further step towards a broad liberal approach to s. 24(2) of the Charter that the courts have traditionally taken.
“It’s been the law for a long time — that you don’t need to have a causal connection between a Charter breach and evidence — but it’s been at the very least uncertain whether you could have a case where the evidence comes first and the breach only materializes later,” says Krongold.
Michael Lacy sees the ruling as resolving “in a very final way” the debate in the cases, and among academics, about what the phrase “obtained in a manner” means in relation to s. 24(2).
“Essentially, you don’t need a straight-line connection between the breach and obtaining exclusion,” says Lacy, a criminal lawyer at Brauti Thorning Zibarras LLP in Toronto,.
While he feels the ruling will give “significant guidance to future courts,” Lacy says he won’t be surprised if the Crown seeks leave to appeal.
Beyond reaffirming Charter breaches should make it easier to get exclusion even when breaches occur after evidence is obtained, Krongold and Lacy both say Pino is breaking new ground by stating exclusion should also apply when police are found to be dishonest about their misconduct.
“While the accused bears the burden, there’s an evidentiary shift onto the Crown to deal with matters like good faith or the police mitigating explanation for their Charter breach,” says Krongold.
Pino reaffirms a principle originally set out by the Supreme Court of Canada in R. v. Bartle, where the court ruled the prosecution is required to provide evidence to explain Charter breaches.
“That’s an important principle as well because the way the trial decision came down in this case, it really put an accused in an impossible situation,” says Krongold.
In Pino, the accused convinced the judge the police were lying about their version of events, but had no way to explain why they lied. The trial judge had assumed the reason for the dishonesty — an explanation was never given by the Crown. The Court of Appeal ultimately found the trial judge’s assumed reason was speculation and reaffirmed the accused isn’t required to explain the Charter breaches by the police.
“It’s a subtle point but a really important one in Charter litigation,” explains Krongold.
“Frequently you have a conflict between what the accused says happened and what the police say happened. If the accused is able to show the police are being dishonest it’s very helpful to gain exclusion when you don’t have to also explain why they’re being dishonest.”
He’s not aware of any steps taken with respect to the officers involved in spite of the fact there was a “very clear finding by the judge that one of them in particular was less than truthful in his testimony in court under oath.”
On May 13, a similar appeal ruling came out in R. v. McGuffie, another Ottawa case that again saw evidence excluded following the police’s violation of an accused’s Charter rights and the trial judge “making mistakes,” says Krongold.
For Lacy, the appeal decisions in McGuffie and Pino are “a reminder that Charter jurisprudence is alive and well.”
“The Charter is going to be given a robust interpretation by the court as a check against improper state conduct.”
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