Legal Feeds Blog
The Toronto Region recently announced its project that will change the scheduling system from fixed court dates for two-to-three week personal injury trials to four-week sittings.
This will see trials that are currently scheduled from September to December of this year moved to a time in the four weeks after Nov. 27. Those scheduled from
|Sivan Tumarkin says the project could possibly disrupt other regions where Toronto lawyers have trials booked that don’t have a sittings system in place.|
With this approach, personal injury lawyers will not have fixed dates for trials and could be called at any point within these four-week periods, which they worry will likely lead to double bookings. In addition to having trials in the sittings periods in Toronto that could conflict with trials scheduled in other regions, lawyers could even have multiple trials now in the same sitting period in Toronto that could overlap.
“I think more lawyers are going to be double, triple and quadruple booking themselves, which is going to potentially cause delays across the province,” says Sivan Tumarkin, a partner with Samfiru Tumarkin LLP.
Tumarkin says the project could possibly disrupt other regions where Toronto lawyers have trials booked that don’t have a sittings system in place, although the periods in Toronto have been set so that they do not conflict with the sittings in Central East and Central West regions.
“They are trying their best to alleviate a chronic problem of getting to trial and I think it’s yet to be seen if this project will actually alleviate that issue,” Tumarkin says.
Personal injury trials make up 60 per cent of trials in Ontario. Mick Hassell, of Hassell Trial Counsel, says such a sittings approach makes sense for personal injury, as it is the area with matters that are most likely to settle before trial. Medical malpractice trials will be exempt from the project as they have a much higher probability of going to trial than other personal injury cases.
Lawyers say the goal of the new approach is to cut down on delays and inefficiencies that come from the current trial scheduling system. Under the current approach, litigants can rarely schedule a trial date until two and three years later, and the trial list often collapses because of the high rate of settlement in personal injury matters.
“Now they might be able to put you on an earlier trial sitting and get your case heard or brought to a conclusion. Most of them will settle. They’ll be able to do that a whole lot sooner,” Hassell says of the sittings project.
Adam Wagman, a past president of the Ontario Trial Lawyers Association and a member of the Toronto Civil Bench and Bar Committee, says courts have not been able to overbook when scheduling on a week-by-week basis, as they need to be able to ensure that parties are going to be able to start their case that week.
But with the sittings approach, courts will be able to book more cases in a four-week sitting than multiple months worth of fixed-trial dates, reducing the time out to trial, he says.
“The law of averages tells you that as long as you’ve set aside enough judges for that period of time, you’ll be able to get through all of those trials,” he says. “And so really the point of this is to eventually provide earlier trial dates in that category of trials.”
Wagman says one of the reasons the court has been forced to try something different is because of judicial vacancies left open by the federal government. He says the federal government also needs to consider increasing the judicial compliment in Toronto, which has remained fairly static for decades, despite population growth.
“We just do not have enough judicial resources in Toronto, and frankly in many of the jurisdictions in Ontario,” he says.
Lawyers have also expressed concerns that the sittings approach could face practical problems for lawyers and their expert witnesses, who will be told they could be called at any time in a four-week period.
In addition to being an inconvenience, this could mean that expert witnesses whose testimony is vital for a trial might not be available, leading to an adjournment.
Hassell says that such logistical hurdles might actually drive settlements, freeing up even more court resources.
Wagman says that it is a much bigger problem to tell litigants they have to wait for years to have a trial date than it is to tell an expert they’ll be needed on short notice, and that the courts will likely show some flexibility in calling witnesses.
“The reality is that we’ve got a crisis over in the court in terms of the time outs to trials and the court needed to do something to try to come up with a solution. And if that means we have to significantly inconvenience some experts along the way, that’s absolutely one of the potentially negative effects of this project,” he says.
Lawyers who were consulted on the project say that it is a pilot, but could be extended past June 2018 if successful.
The Ministry of the Attorney General referred all questions on the project to the Ontario Superior Court, which did not immediately respond to a request for comment.
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|Geoffrey Kubrick says industries that could be impacted by new NAFTA negotiations include the dairy industry, the chicken and egg industry, telecommunications, digital services and liquor rules.|
Geoffrey Kubrick, Ottawa-based national chair of the international trade practice at McMillan LLP, says some companies have expressed worry over the possibility of impending NAFTA negotiations.
“There’s a lot of concern about the negotiations, but it’s not so much about the negotiations, as what is being reported about what is going to be covered,” says Kubrick. “For example, there are things like border taxes, and those things are never going to happen. What people should be focusing [on] is what really could change under NAFTA.”
Kubrick says he believes negotiations could focus on specific sectors, where there were exceptions or reservations taken by Canada and Mexico.
“I think that’s where people should be focusing, but right now, there’s a lot of talk about things that probably aren’t going to happen,” he says.
He says when he recently reviewed NAFTA, he discovered that “about two-thirds of NAFTA is actually exclusions, reservations and exceptions, and most of those are for Canada and Mexico.”
“So, I fear that President Donald Trump was correct, in that the United States gave up more than Canada and Mexico did,” he says.
Kubrick says in his opinion, industries that could see changes include the dairy industry and the chicken and egg industry.
“Where the United States will likely target is where Canada has claimed a variety of exceptions. . .,” he says, such as where Canada has imposed punitive tariffs on imports.
“Canada allows a small amount of imports, tariff-free, in accordance with our [World Trade Organization] obligations, but after that, we have duties of over 200 per cent on these products, so the United States wants to sell dairy products in Canada and probably they’ll go after chicken and eggs, as well.”
Changes could also impact the telecommunications and entertainment industries, digital services such as cloud computing, and liquor rules. Kubrick predicts in certain areas the U.S. government will look to have “Canadian exclusions and exceptions and reservations removed or reduced,” like for dairy and egg products.
“That will certainly be a topic of discussion, and if we want to keep it, we’re going to have to give the Americans something else,” he says.
Kubrick, who has been practicing for nearly 30 years, says the negotiations could mean more work for lawyers.
“What a lawyer can do at this stage is assist [their clients] in communicating concerns and developing a strategy to push the Canadian team to strengthen their resolve in maintaining these protections,” he says.
He says lawyers should let their clients know there are concerns related to certain sectors and encourage their clients to get their message before government.
“The real issue for lawyers comes after the negotiation, on implementation,” he says. “When the rules change, there’s always more work for lawyers. . . if you have new laws, you have new rules, and they have to be tested to see where they stand.”
This is especially true for international trade lawyers.
“The more trade you have, the more trade disputes you tend to have,” he says.
“When there’s more competition coming from abroad, there’s more concern about that competition, and how you deal with it.”
"We advise lawyers to recognize OPCA litigants and recommend that lawyers refuse to notarize their documents and not further their attack on legitimate court processes, authority and staff," the LSBC advised in its spring 2017 Benchers' Bulletin.
OPCA litigants consider themselves “sovereign or natural citizens” or members of the Freeman-on-the-Land movement or “de-taxers.” They argue that Canada's laws do not pertain to them as they eschew any government documentation or identity. Instead, they claim the only true law stems from the Bible. The movements, rooted in the U.S., are led by gurus, or leaders, who host seminars on how to avoid complying with Canada's laws.
Alberta Court of Queen's Bench Justice John Rooke coined the term "Organized Pseudolegal Commercial Argument" litigant in 2012 in his much-cited judgment Meads v. Meads, 2012 ABQB 571, where he sets out group characteristics, their arguments, gurus and failed court cases.
Alberta lawyer Donald J. Netolitzky has more recently researched and published on OPCA litigant movement and arguments. In a 2016 article, looking at the history of the movement, Netolitzky notes "why it is important for Canadians to take notice of this movement due to potential security risks."
He also authored a paper — “OPCA in Canada; an Attack on the Legal System” — in 2016.
Along with Justice Rooke, in 2016, he co-published A Judicial Guide to OPCA Litigation: Tips and Tricks for members of the judiciary. Netolitzky examined 725 reported Canadian court decisions that involved OPCA litigation in some form. The four most common use of the OPCA theory is as a defence in criminal prosecution, income tax litigation, debt avoidance attempts and attacks to enforce fictitious OPCA-based rights.
Despite losing cases or having complaints repeatedly tossed out of courts across Canada, OPCA litigation has continued, including in B.C. and Alberta, often accompanied by a barrage of legal documents.
In January, an OPCA litigant tried to bring a claim for more than $2.5 million in damages and a finding of trespass against a B.C. provincial court judge. The Federal Court, the jurisdiction in which the complainant filed, tossed it.
Lawyer Ron Usher, general counsel for the Society Of Notaries Public Of British Columbia, who follows OPCA litigations, said the ability to bring forward suits can be intimidating to individuals.
In September 2016, Edmonton police charged an alleged Freeman-on-the-Land member with "paper terrorism" after he began a litigation campaign directed at a police officer who stopped him for speeding. The man attempted unsuccessfully to put a $225,000 lien
on the officer's home. Police charged the man with intimidation of a justice system participant.
In the RCMP's 2016-issued "Terrorism and Violent Extreme Awareness Guide,” which is a list of extremist groups and their characteristics in Canada, the Freeman-on-the-Land movement is known for its quasi-legal actions. "In the past few years, freeman filed liens on property owned by judges, both in the U.S. and Canada," the guide said.
In March, a Kelowna OPCA litigant was the subject of a BC Supreme Court case where he was found to have been unlawfully dispensing legal advice and documents and charging for it. Supreme Court Justice Gary Weatherill in The Law Society of British Columbia v. Crischuk, 2017 BCSC 531 ordered Kazimierz Chester Crischuk, another Freeman-on-the-Land, to cease practising law and pay $2,600 to the LSBC.
Crischuk maintained that he did not recognize the LSBC, or Canada's constitutional history, but instead referred to the Bible in his affidavit. "Elizabeth Alexandra Mary of the family of House of Windsor swore an oath on the 1611 King James Version of the Holy Bible when she took the office of the Queen of England et al. Part of her investiture was the acceptance that ‘the whole world is subject to the power and empire of Christ’ and as a consequence, the Holy Bible is the Supreme Law," he said.
The justice termed Crischuk's submissions "incoherent, rambling and complete nonsense."
LSBC communications officer David Jordan said the Bulletin post is a reminder to members and does not relate to any specific case. "From time to time, the subject rises in public attention and the Law Society reminds lawyers not to lend credibility to pseudo-legal commercial arguments by notarizing related documents," he said via email.
B.C. has also seen a string of convictions related to Paradigm Education Group, which counselled individuals on how to avoid paying income taxes as "natural persons." Eight educators in the scheme and 26 students have been convicted in Canadian courts recently of offences such as not paying GST, counselling to commit fraud, evading income taxes and filing false income tax returns. The group’s founder, Russell Porisky, was sentenced in the summer of 2016 to five-and-a-half years in prison.
"It hasn't worked out that well for them," said Usher.
The impact of appeals to the federal tax court was seen in August 2013 when the National Post outlined how de-taxers were clogging the federal tax court and identified 385 cases that used language and arguments similar to the Freeman-on-the-Land ideology of natural citizens being exempt from paying taxes.
Earlier, in Feb. 2013, Tax Court Justice Diane Campbell, when dismissing an appeal, wrote: "Because of the thread of similarities on wording in hundred of these appeals, it is apparent that these appellants have received 'counsel' from a third party."
Usher, who has sat through a Freeman-on-the-Land seminar, said the leaders are convincing orators while followers can be "very righteous" in their attitude.
Usher said his association members have also been advised not to deal with OPCA litigants although the main concern still remains the safety of notaries. "B.C. is blessed in that it hasn't had any violent incidents," he said. That is not true in other places.
The OPCA member activities range from ignoring Canadian laws to acts of violence. The RCMP guide said: “The American authorities reported that since 2000, six police officers were killed by freeman. In 2015, a member of the Edmonton Police Hate Crimes detail was killed by Norman Raddatz, an individual who demonstrated ideologies consistent with the FMOTL movement.”
Usher said notary offices have a safety plan in place to deal with aggressive individuals.
“We don't want any superheroes,” he said, adding that if an individual becomes threatening in manner to have documents notarized, he advises members not to resist.
"Sign and then call 911," he said.
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|Johnna Kubik was appointed a judge of the Court of Queen’s Bench of Alberta in Calgary in a recent round of federal judicial appointments.|
From Langlois Avocats, partner Karen Rogers was appointed a judge of the Superior Court of Quebec, district of Montreal. The position she fills is a new one created by Bill C-31. Before her appointment to the judiciary, Rogers led the litigation group at the firm.
She brings more than 28 years of experience in litigation to her new role. She is a member of the Barreau du Québec’s discipline and arbitration committees and has taught at l’École du Barreau for nearly a decade. Rogers mentors young women in her role as a member of the Association of Quebec Women in Finance and is also an active member of a fundraising team supporting the Jewish General Hospital and its research into women’s cancers.
Christine Baudouin, lawyer at Casavant Mercier Avocats, is also appointed a judge of the Superior Court of Quebec, district of Montreal. She replaces Justice M. De Wever, who elected supernumerary status effective Nov. 7, 2016. Since her call to the bar in 1993, Baudouin has practised litigation with several firms, including Heenan Blaikie LLP from 1997-2009 and Casavant Mercier Avocats from 2010 until her appointment to the judiciary.
Baudouin has contributed her expertise in bioethics by serving on the Ethics Committee of the Montreal West Island Integrated University Health and Social Services Centre and the Research Ethics Committee of McGill University and is also involved with charities addressing various causes such as women’s health and autism.
Associate professor at the Faculty of Law at McGill University, Frédéric Bachand, is appointed a judge of the Superior Court of Quebec, district of Montreal. His appointment fills a vacancy left by Justice S. DeVito, who elected supernumerary status on Dec. 6, 2016.
Bachand joined the Faculty of Law at McGill in 2003, and has served as an accredited arbitrator in both domestic and international cases. He has volunteered with a number of organizations, including the Canadian Civil Liberties Association, where he served on the board. Bachand was named Advocatus Emeritus (Ad. E.) by the Barreau du Québec recognizing his contributions to the law and to legal education and received the John W. Durnford Teaching Excellence Award at McGill University.
Daniel Royer, a Crown prosecutor with the office of the director of criminal and penal prosecutions, is appointed a judge of the Superior Court of Quebec, district of Montreal. He replaces Justice P.G. Capriolo, who elected supernumerary status effective Dec. 14, 2016.
Royer has exclusively practised criminal and penal law since his call to the bar in 1996. He practised for 15 years as defence counsel with the firm of Labelle Boudrault Côté and Associates. From 2011 until his recent appointment to the judiciary, he was a Crown prosecutor in the Longueuil and Montreal offices of the Director of Criminal and Penal Prosecutions. Royer has argued more than 100 criminal appeals before the Quebec Court of Appeal and the Supreme Court of Canada over the course of his career. He has taught criminal law and evidence at O’Sullivan College in Montreal, as well as a course linked to the Gale Cup moot at the Université de Montréal.
Johnna Kubik, sole practitioner with Kubik & Co. in Alberta, was appointed a judge of the Court of Queen’s Bench of Alberta in Calgary. Her appointment fills the vacancy left on Nov. 15, 2016 when Justice B.E. Mahoney elected to become a supernumerary judge.
Kubik represented a wide range of clients during her career as a civil litigator, including representing them in personal injury cases, insurance defence and estate litigation. She has represented claimants in the Indian Residential School Independent Assessment Process, patients in mental health proceedings and the Lethbridge Police in a public fatality inquiry. She is also active in the community, promoting access to justice throughout her 12 years of service on the Regional Appeals Committee (Southern Region) or Legal Aid Alberta. Kubik is a veteran volunteer, offering her services pro bono at Lethbridge Legal Guidance.
Senior counsel with the Public Prosecution Service of Canada, W. Paul Riley was appointed a judge of the Supreme Court of British Columbia in Vancouver. He replaces Justice C.J. Ross after she elected to become a supernumerary judge on April 1, 2016.
In 2007, Riley became head of the British Columbia Regional Office's appeals group where he conducted hundreds of appeals in the British Columbia Court of Appeal and appeared over a dozen times as lead counsel at the Supreme Court of Canada.
The cases involved issues of criminal and constitutional law. He has served on numerous committees, including the PPSC's National Litigation Committee and the British Columbia Court of Appeal's Criminal Appeals Advisory Committee.
Partner with Cox & Palmer, Sandra Chaytor, was appointed a judge of the Trial Division of the Supreme Court of Newfoundland and Labrador in Grand Bank, replacing Justice G.A. Handrigan who elected to become a supernumerary judge on April 8.
Chaytor, called to the bar in 1989, has more than 25 years' experience at Cox & Palmer, serving as deputy managing partner of the St. John's office. She was appointed Queen's Counsel in 2007 and in 2010 was named a Master and Taxing Officer at the Supreme Court of Newfoundland and Labrador. Chaytor was selected to serve as co-counsel to two high-profile public inquiries in the province: the Commission of Inquiry on Hormone Receptor Testing, which investigated errors in breast cancer testing, and most recently the Inquiry Respecting the Death of Donald Dunphy.
Frances Knickle, acting director of public prosecutions with the Newfoundland and Labrador Department of Justice and Public Safety, was appointed a judge of the Trial Division of the Supreme Court of Newfoundland and Labrador in Happy Valley Goose Bay. Her appointment fills the vacancy left by Justice C.R. Thompson who elected to become a supernumerary judge in Dec. 4, 2016. The vacancy is located in Happy Valley Goose Bay because of an internal transfer by the chief justice.
After articling with the Newfoundland and Labrador Department of Justice, Knickle worked with the Public Prosecution Division since being called to bar of Newfoundland and Labrador in 1992.
Through her long tenure as a front-line trial Crown, Knickle developed a specialty in appellate advocacy, and appeared several times before the Supreme Court of Canada.
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According to Forbes, in the next decade, 75 per cent of the workforce will be made up of millennials and each day 10,000 baby boomers in the U.S. retire. But ,what is happening internally in legal departments and law firms to try and plan for how this demographic change is going to affect the way legal services are delivered?
“The people you are providing legal services to are changing,” said Bernadette Bulacan, director, market development at Thomson Reuters, speaking at the Corporate Legal Operations Consortium second annual conference last week. “We need to think about how we will need to communicate to those business partners who are changing.”
Bulacan’s talk covered the perceptions and expectations around the millennial generation (those born between 1980 and 1997) and the need for thoughtful succession planning.
In a report called “Legal Department 2025 — The Generational Shift in Legal Departments: Working with Millennials and Avoiding Baby Boomer Brain Drain”, Thomson Reuters surveyed legal departments about the changing demographics. The survey represented three generations: baby boomers, gen-Xers and millennials. It identified current perceptions of millennial corporate counsel and revealed that legal departments are unprepared for the generational shift taking place as baby boomers retire and more millennials join the workforce.
For the most part, the corporate counsel who answered the survey reported they’re not doing anything to prepare for this generational shift. Only 26 per cent of legal departments have a succession plan in place, and the vast majority of legal departments do not have a formal mentoring program; only six per cent reported having such a program in place. In some cases, that may be attributed to the fact that many legal departments are small with less than five lawyers and it is not perceived to be an immediate concern.
Millennial traits are said to include being tech-savvy, entrepreneurial, creative, collaborative and they value diversity. They are also often perceived to be too candid, have a sense of entitlement and considered “job hoppers.” However, the gen-Xers were also criticized for being job hoppers; even baby boomers changed jobs frequently, but they did so mostly between the ages of 18 and 24.
“I don’t think they are job hoppers or disloyal or craving praise,” said Bulacan. “But I think it’s a good thing to put mentorships and succession management programs in place to handle things such as knowledge management and building skillsets for the future.”
While legal departments need the right technology and processes to address the evolution of the way legal services will be delivered, they also need a strategic plan to include having the right people in place to support future needs.
“[Amazon’s intelligent assistant] Alexa may eliminate your need for particular people. You may approach technology differently because you’re working with more digital natives,” she said.
The survey found that the top perceptions of millennial lawyers are that:
• 74 per cent of millennials know they will bring tech advancements faster than other generations
• 70 per cent want a high level of involvement in decision-making of legal department
• 63 per cent anticipate being promoted within the legal department
• 63 per cent said they have strong craving for work/life balance
• 59 per cent prefer to work for organizations that align with their values and morals
“These are things operations professionals and general counsel need to think about, particularly if a certain group in a department is craving advancement,” she said.
“When you look at your own department, what do you think is most attractive to this new generation coming in? What is your department doing that is attractive in terms of recruiting or retaining millennials?”
But shouldn’t departments be doing succession planning from top to bottom on a periodic and regular basis? Yes, says Bulacan.
“If this conversation about millennials gives us the opportunity to do this, then we need to take advantage of it and bust some of the myths,” she said.
Bulacan said it’s important for in-house departments to not just rely on annual performance evaluations but 360 evaluations to identifying future leaders and to look for leadership skills and development opportunities.
Reverse mentoring can also be valuable in that it facilitates exchange of information between millennials and boomers who can share skills with each other in a variety of ways such as sharing on application of technology as well as knowledge transfer.
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|Gail Cohen is one of two people appointed to Osgoode Hall Law's Journalist in Residence program.|
“We received stellar applications from talented journalists for these two positions,” said Osgoode Dean Lorne Sossin in a press release today. “We’re delighted that Gail Cohen and Roxana Olivera will be joining us to explore stories about justice and the impact of law in our society and in our world.”
Osgoode announced in February that it was seeking applications for the position.
The Journalist in Residence will receive a stipend of up to $25,000 for a term or part of a term (or on a more part-time basis spread over an academic year) (plus approximately $5,000 in disbursements), in addition to an office and full access to the academic resources and intellectual community at Osgoode. While the Journalist in Residence may hold other positions, the Journalist in Residence will be expected to spend a significant portion of his/her period of residence at Osgoode.
The program is designed to encourage journalistic projects focused on interpreting legal history, examining law’s realities today and imagining law’s future. The Journalist in Residence Program is funded in part from Osgoode's Fund for Innovation in Law & Media, made possible by a gift from alumna Kathryn Podrebarac, and the Art Vertlieb Q.C. Fund. Both funds are dedicated to exploring the intersection of law, media and journalism.
Cohen was editor-in-chief of Canadian Lawyer, Canadian Lawyer 4Students, Law Times, Canadian Lawyer InHouse and Legal Feeds blog from 2006 to 2016 as well as FindLaw.ca from 2012 to 2016. She is currently a media and communications consultant working with the Canadian Civil Liberties Association as its director, media and communications.
Among the projects she plans to pursue while at Osgoode, Cohen will examine the impact of landmark rights and equality cases involving the LGBTQ community from the litigant’s perspective as well as on the legal landscape in Canada.
“I'm looking forward to having the time and resources to focus on a project that I am passionate about as well as being able to take my years of experience running the largest group of legal periodicals in Canada to help amplify to the public the great work happening at Osgoode,” Cohen said.
She also looks forward to working with students, staff and faculty on the role media can play in legal advocacy.
Cohen has received a number of awards over the past 20 years, including a Canadian Association of Journalists/Canadian International Development Agency fellowship in 2003 to cover the International War Crimes Tribunal for Rwanda.
Olivera’s passion for the rule of law, human rights and social justice informs her work, which has been published in English, Spanish and German. At Osgoode, she will be working on a project that will explore the boundaries of the law concerning child abuse and exploitation and the proliferation of offending material online in the digital age.
“This appointment is for me a great opportunity to work alongside internationally renowned scholars on a project that aims to stir debate about change in national and global legislation regarding online child exploitation and how to better support and protect survivors,” Olivera said.
Olivera’s reporting has appeared in digital, broadcast and print media. Her radio documentary, The Good Italian?, which she produced with Steve Wadhams, won a bronze medal at the New York Festival’s International Radio Program Awards for the World’s Best Radio Programs in 2014. Her feature, Standing Up to Big Gold, which was published in the United Church Observer, received an award of excellence from the Associated Church Press in Chicago in 2014.
More recently, Olivera formed part of the investigative team of the International Consortium of Investigative Journalists that carried out an investigation — Evicted and Abandoned: The World Bank’s Broken Promise to the Poor — which received several awards, including the prestigious Al Neuharth Innovation in Investigative Journalism Award.
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