- Judge stays charge, slams Crown for delays in workplace fatality case
|Norm Keith says prosecutors at the Ministry of Labour and other government departments have not been paying attention to corporations who are in the process of being prosecuted simply because they assumed maybe that Jordan didn’t apply.|
“The defendant’s trial has clearly been unreasonably delayed whether the analysis is under the Jordan framework or that of Morin. The Crown principally due to its ongoing failure to provide timely disclosure and its overall complacency about the pace of the litigation is responsible for the vast majority of the delay with the rest accounted for by institutional time constraints,” Wilkie wrote.
Justice Wilkie also stated: “In my view it is apparent from the court’s summary of the chronology of the trial itself, that the Crown made no efforts to manage the case so as to improve the pace of litigation but in fact through lack of focus and inaction further contributed to the delay.”
While there have been a couple of other stays issued under Jordan, Fasken Martineau DuMoulin LLP lawyer Norm Keith predicts there may be more to come.
“I think prosecutors at the Ministry of Labour and other government departments have not been paying attention to corporations who are in the process of being prosecuted simply because they assumed maybe that Jordan didn’t apply, but this case definitively asks does Jordan supersede CIP [R. v. CIP Inc.], which sets a higher test for prejudice for a corporation than an individual.
“CIP basically said you can’t presume prejudice just because of a long delay under s. 11(b) — you have to prove as the corporate defendant that you have suffered irremediable prejudice,” says Keith, who represented Stephenson’s Rental in the case.
And in his decision, Wilkie states: “. . . at the heart of Jordan is the objective to change the culture of delay in the justice system as a whole and to require all trials to function as efficiently as possible. In this sense they have signaled that when section 11(b) is breached it is not just the particular defendant who is prejudiced but the justice system and by extension the community as a whole. There is no basis for concluding that this objective applies only to trials of individuals.”
The charge against Stephenson’s Rental Services, issued under the Occupational Health and Safety Act, arose from a workplace fatality that occurred at the General Motors plant in St. Catharines, Ont. on Nov. 18, 2011. The worker was an employee of Procon Niagara, contracted by GM to do work at its plant. At the time of the incident that caused his death, the person was operating an electric-powered elevated work platform also known as an articulating boom lift, which had been rented by Procon from Stephenson’s Rental Services. The allegation was that the equipment provided by Stephenson’s was mechanically defective and not in proper working order.
At the time the delay application was heard in January 2017, the case had been in the system for more than 55 months and the trial was more than two years old. But that was not the first time there had been an assertion by Keith that the proceedings breached his client’s right to trial without reasonable delay.
There was a 30-month delay from the laying of the charge in June 2012 to the beginning of trial in December 2014. Keith brought an 11(b) application returnable on the trial date.
The two-and-a-half years leading to the trial included a 19-month period involving 13 appearances before the trial was set including one, where with no explanation, no one appeared for the Crown.
Keith says the Crown was arguing it was a complicated case with expert witness material involved. However, the judge pointed out the Crown had taken too long to turn its mind to the expert witness material.
“There is no question that the expert disclosure did take the Crown by surprise, but only because they had to that point, well into the trial, at least 2 years after he had been retained by the Ministry to provide critical expert testimony, inexplicably in my view, failed to turn their mind to it,” said Wilkie.
Keith admits he himself was responsible for a about nine days of the delay in August 2015 due to a scheduling issue, but other than that, the judge said when it came to the defence, “there was no waiver and no tactic calculated to cause delay.”
It then took about a year from the time the expert first gave evidence to get him back on the witness stand.
“Even the witness himself seemed surprised that he had never been asked to produce his work product beforehand or to bring supporting documentation with him to court,” Wilkie stated in his decision. “And of course when alerted to the issue, the Crown readily agreed that the defence was entitled to disclosure of the material and conceded the case would have to be adjourned to enable the defence to receive and review it.”
The net delay was at least 60 months — 41 months above the presumptive ceiling.
As Jordan was decided the first week of July 2016 and the Stephenson’s case started in December 2014, the Crown had argued the Jordan 18-month rule didn’t apply.
But the judge disagreed, even noting that the Region of Niagara was not one where a culture of long delays was the norm.
“Ultimately, the right to trial within a reasonable period of time of the accused, be it individual or corporate, is superseding the social interest of a trial going to final decision,” says Keith.
The Crown for the Ministry of Labour was contacted for comment but a response was not received by time of posting.
|Jordan Furlong says future advances by international firms into Canada are more likely to be the kind of expansion Freshfields is exploring as opposed to involving international mergers with Canadian firms.|
Last week, both The Lawyer online and Legal Week reported that London-based Freshfields Bruckhaus Deringer LLP might be looking at Toronto, not Vancouver, for a future services centre.
Reports of a Freshfields location in Canada first surfaced a year ago when one of the firm’s executive partners hinted a plan was in the works to open a second “legal services centre” in Vancouver at the end of 2016. The centre would largely be staffed initially by paralegals. The firm has a similar kind of centre in Manchester employing 250 people.
But Freshfields still isn’t officially tipping its hat one way or the other.
“We haven’t made any final decisions about a second centre and are continuing to investigate a number of options,” said Nick Bell, a spokesman for Freshfields, via email.
Freshfields has more than 2,500 lawyers in offices around the world.
Jordan Furlong, an analyst of the legal market, says there has been talk for a long time of “the Magic Circle sniffing around Canada” — in the past, it has typically been Allen & Overy LLP.
“It’s interesting for a couple of reasons — for one, they’re clearly not looking for the cheapest location,” says Furlong. “If you’re looking for competent legal personnel, Calgary is great, Halifax is great. So far, they have hinted at the two most expensive cities in the country.”
Past reports have always tied a Canadian expansion to the firm’s Manchester services centre. It has 40,000 square feet on four floors of a major office building with plans to hire up to 700 people.
“It suggests Freshfields is serious about taking the functions that can be moved into that kind of centre — HR, IT, marketing and business development — it’s like they want the people doing legal work in one location and everything else the firm does in another,” says Furlong who recently published a new book: Law Is a Buyer’s Market.
He notes that because Ontario has a full-fledged paralegal licensing and training program that might be why Freshfields may have its sights set on Toronto for staffing the centres.
Future advances by international firms into Canada are more likely to be the kind of expansion Freshfields is exploring as opposed to involving international mergers with Canadian firms, he says.
“There aren’t necessarily that many attractive large law firms — at this point, it’s either firms that are top of the grade that are not going to be open to a merger in which they lose their brand and firms that don’t have as much attractiveness for the global market,” he says.
“Expansions in the future will be less about huge link-ups of major firms and more about looking for qualified legal support personnel and technology.”
Peter Carayiannis, partner at Deloitte Conduit Law, says if Freshfields is looking at Canada again, it could have a negative impact on certain levels of the Canadian legal market.
“The big get bigger, the small get focused and the middle get squeezed,” he says. “This is where you see the truly global players in the market will continue to grow and expand and extend capabilities and grow to better serve clients and not just grow for the sake of growth. If that’s the case, it will be a winning strategy.”
Creating competition in the market will create a net benefit for those needing services in the market, he says.
Carayiannis says Toronto has also started to develop a reputation internationally as a hub for legal innovation.
Ryerson University’s Legal Innovation Zone and Legal X are viewed as attractive centres of technology innovation that may also be appealing to firms outside Canada.
Furlong’s book talks about productivity engines and traditionally law firms have only had one engine and that is a lawyer — now it will be people, machines or systems to amplify the expertise their lawyers provide.
“That to me feels like the direction the big firms are starting to move towards and maybe Freshfields is a sign of that,” Furlong says.
While still early days, use of technology is increasingly how firms are adding revenue-generating tools to their portfolios.
U.S. labour and employment firms Littler Mendelson PC and Ogletree Deakins Nash Smoak & Stewart PC, which recently set up shop in Toronto, are very focused on cost containment, efficiency and especially automation technology.
“I think future advances into Canada might be more along those lines,” says Furlong.
In Canada, Freshfields has advised clients such as Bank of Montreal, Canada Pension Plan Investment Board, Province of British Columbia and Ontario Teachers’ Pension Plan.
|Michael Welsh says now that the B.C. government has extra funds, some of it should be directed toward improving the provincial judicial system.|
"We want it to become an election issue and because there is a surplus [in the budget]," says CBABC president Michael Welsh, adding that now that the provincial government has extra funds, some of it should be directed toward improving the B.C. judicial system.
"It is essentially broken as it is unable to adequately provide individuals with justice in the courtroom," he says. The report targets four main areas: access to justice, support for B.C. families, public safety and community fairness and creating a stable business environment. The report says B.C. is not meeting needs in any of these areas as only one per cent of government expenditures are directed into the legal system. Funding has been cut since 2002 when the government closed 24 courthouses and the Legal Services Society closed 45 offices.
"Today, there is no fat to trim and the system is seriously frayed,” states the CBABC report.
Especially hard hit in B.C. has been legal aid for families, and Welsh estimates that at least $20 million is needed to begin to fix the system as it is heading toward what he calls a “crisis.” Currently, 40 per cent of family law cases in provincial court and up to 15 per cent in B.C. Supreme Court do not have representation.
"It will start to put things back in place and provide adequate legal aid for families," Welsh says.
Lawyers undertaking legal aid need more funding as well. B.C. legal aid lawyers are paid between $84 and $92 an hour.
"There are more and more lawyers who are just not willing to do legal aid as it is not financially viable. You can't run a law practice out of the trunk of your car,” says Welsh.
By comparison, Newfoundland's rate is $135 an hour and Ontario's is $136, while even B.C.'s Ministry of Children and Family Development pays lawyers $134 an hour. The CBABC is asking for legal aid tariffs to be brought in line with the child ministry's rate.
Another second major access to justice issue is lack of courts and staffing. Welsh says there have been instances where sheriffs have been flown into Vancouver from the Kootenays so that courtrooms can operate as there is a lack of staff. The report calls for a funding increase to the Court Services Branch so that courtrooms, (also in smaller communities), can operate more efficiently and reduce the case backlogs. Adequate staffing in smaller communities would also allow judges, when available, to travel to these areas and deal with cases on a more frequent basis.
The CBABC report is also calling for a fixed complement of judges. While seven new provincial court judges were hired in January, these judges are only offsetting retirements expected during the year.
The report looks at the difficulty of bringing new lawyers into B.C. rural and northern communities as many of the existing lawyers retire.
"Younger lawyers are often carrying a crushing student debt," Welsh says, and they can't afford to go to smaller communities where revenues may be lower. The report recommends provincial student loan forgiveness if lawyers stay for five years. "It is not an expensive proposition," says Welsh as it provides government with a means of drawing in professionals to rural areas.
B.C., like other provinces, faces a huge challenge in finding new ways of dealing with indigenous men making up 20 per cent of the population in prisons in Canada while indigenous women inmates account for 35 per cent.
"Everyone is looking at these issues," he says, adding that money is being invested to find a way for the justice system to work for the indigenous people rather than as an instrument that suppressed them.
The report features a list of recommendations such as expanding the First Nations Court program, amending statutes that allow governments to use limitations as a defence for historical abuse, diversion programs and it looks at underlying causal effects of individuals who land in the justice system.
Further CBABC recommendations set out include:
• The government develop and implement a technology strategy with features such as videoconferencing for dealing with cases in remote areas;
• The seven-per-cent provincial sales tax on legal services be eliminated. If it can't be eliminated, then the funds should be directed back into legal aid;
• Increase funding to the B.C. Family Justice Centre so more staff can be hired to carry out assessment reports within a six-week time frame and also hire more trained mediators and family justice counsellors to reduce wait times;
• Work with the federal government to establish a Unified Family Court, which has been done in other provinces, so that issues can be resolved faster in overlapping family matters;
• Amend the Consumer Protection Act eliminating potential confusion regarding the cost of borrowing and the interest that accrues on reverse mortgages;
• Expand restorative justice so that it becomes a tool that Crown prosecutors and police can use to deal with cases and ensure there are trained staff members in place to handle these cases;
• Amend the Commercial Tenancies Act (which is essentially the same as when it was passed in 1897) to better streamline the dispute resolution process for commercial landlords and tenants;
• Amend the Class Proceedings Act to harmonize with other Canadian provinces and allow individuals to opt out rather than opt in.
|Meerai Cho pleaded guilty in Ontario provincial court Wednesday to one count of criminal breach of trust.|
The matter was heard before Justice Jamie Chaffe at the 1000 Finch Avenue West court.
As Law Times reported in September 2014, Cho was arrested and faced 75 charges related to fraud over $5,000, possession of property obtained by fraud and breach of trust. At that time, she said she transferred the condo purchasers’ deposit funds, which she was holding in trust, to her client who was the developer of a North York building. The transfer of the funds to the developer was contrary to the rules of the Condominium Act.
“What it came down to was a breach of trust — all the facts went into the one count as opposed to 75 counts,” Trudell says. “She didn’t set off to defraud anyone. She didn’t put any of the money in her own pocket.”
Cho claimed she transferred the money to the developer, Joseph Lee, through an “honest mistake” due to her inexperience.
Trudell says $13.5 million went through her trust account to the developer. The money came from purchasers of condo units in the Centrium condo project at 5220 Yonge Street in Toronto. The project had about 140 investors — at least 50 of them were in court on Wednesday.
“Unfortunately, she trusted him completely, unquestionably and he took off with all the money and is hiding somewhere,” Trudell told Legal Feeds.
As late as 2014, the developer would send Cho emails indicating he was sending her the money back.
“She kept feeding his demands to save the project and continued to do that because she thought he was going to send the money back and the project would work,” says Trudell.
At one point, Cho mortgaged her own home and gave $400,000 of her money to try and save the condo project.
Trudell says Cho received none of the money and that was a significant factor in the court not ordering restitution.
“If you get the fruits of the crime, then obviously restitution is appropriate, but in this case, because she got nothing, she has nothing and chances of repaying it are negligible and she was receiving a penitentiary sentence on the scale of large-scale fraud,” he says.
Cho stopped practising law and agreed to temporary suspension of her licence in 2014 and will now lose her right to practise.
Trudell described it as an “emotional day in court” as seven people read victim impact statements.
“The victim impact statements were raw and emotional,” says Trudell. “They are people who are still angry, of course, but when they realize she got not one penny, people might look at her a little differently.”
Trudell said some victims have made applications to the Law Society of Upper Canada compensation fund and it is "anticipated the victims will be compensated."
In a statement, the LSUC said its Compensation Fund "will move as quickly as possible to provide claimants with any grants for which they may be eligible, on the basis of the lawyer’s dishonesty. The process is already underway and, if grants are approved by the Compensation Fund Committee, eligible claimants should begin receiving fund grants in the spring."
Cho’s guilty plea and the evidence provided will be used to complement the LSUC's own evidence during the law society hearing, which is currently scheduled for March 8, 2017.
There is no limit on the total number of grants paid in respect of an individual lawyer. The Compensation Fund has per claimant limit of $150,000 for losses resulting in the period between September 2010 and July 2013, when Cho transferred monies held in trust for the purchasers to the developer of the condominium project. Each claim is assessed on its own merits to ensure it conforms with the Law Society Act and the Compensation Fund Guidelines.
Cho, originally a journalist in Korea, came to Canada and became a lawyer. Trudell says many of the victim impact statements came from people who also came to Canada to invest and lost everything.
“A lot of the victims said they had no faith in Canada and the justice system and legal system because lawyers are supposed to protect them,” says Trudell. “She [Cho] stood up, apologized to them and told them not to lose faith in the legal system . . . She said there are a lot of wonderful lawyers; don’t use me as an example.”
Cho will serve the sentence in a federal institution, likely Grand Valley Institution for Women in Kitchener, Ont.
Lawyers for the victims are also pursuing civil actions.
Trinity Western University et al. v. Law Society of Upper Canada will be heard with Law Society of British Columbia v. Trinity Western University, et al.
The university won in British Columbia, where an appeal court overturned a law society refusal to accredit its graduates, but it lost in Ontario, where the law society refused accreditation. The Nova Scotia Barristers’ Society lost twice in court against Trinity Western and has said it doesn’t plan to appeal.
Read more about the Trinity Western law school proposal and the debate that has taken place in the profession around the issue in the Canadian Lawyer magazine February cover story "Dividing the bar."
|Nathaniel Lipkus and Bradley White represented Mylan Pharmaceutical in the case involving a commonly used anti-inflamatory drug.|
AstraZeneca Canada Inc v. Mylan Pharmaceuticals ULC. It is the first ruling on the validity of the Vimovo formulation patent anywhere in the world.
The naproxen-esomeprazole combined drug is used for patients with arthritis who might have some risk of side effects with their stomach.
The drug is used for osteoarthritis, rheumatoid arthritis and ankylosing spondylitis — a form of spinal arthritis. It is one of the most heavily prescribed class of drugs on the market.
While separately naproxen and esomeprazole were already generically available, some patients might be prescribed two pills to take but not always follow through to take them together. Now they can get what they need in one pill and for less cost. The generic version should be on the market imminently.
Similar patents are currently being litigated in the United States.
Although naproxen and esomeprazole are both generic drugs in Canada, the Vimovo patent enabled AstraZeneca to charge a higher price for its combination product.
Mylan was arguing that the formulation patent was obvious in view of the prior art and what was out there, while AstraZeneca was saying the formulation was inventive.
The court found the combination formulation to be obvious given prior art and common general knowledge.
Bradley White, partner at Osler Hoskin & Harcourt LLP who led the case for Mylan, says the two components of the drug — naproxen and esomeprazole — were already genericized products.
“What the patent in this particular case covered was a formulation that combined these two products together into a single dosage and it was that formulation they asserted was inventive,” he says.
“The fact these two components were already generically available, it really seemed like a formulation patent that had been put in place that would permit the brand company to charge brand prices for something that to some extent was already being done.”
The case turned specifically on the expert evidence filed in this case, says White.
In the decision, Justice Alan Diner wrote: “I agree with Mylan that this combination was an example of illustrating the prior art.”
“Overall, it’s clear the courts favoured our evidence,” says White. “We were saying all these various elements of this particular formulation were known in the prior art and, therefore, it would have been obvious to the person to bring the various pieces of the prior art together along with common general knowledge to arrive at the invention.”
It is common for patent holders to try to combine their drug with another drug and see if there is a way to extend their patent protection.
“In this case, we had a very decorated clinician who said these drugs are being combined in the clinic all the time and there isn’t really anything special about putting them together,” says Nathaniel Lipkus, partner at Osler who was on the team with White for Mylan.
AstraZeneca argued the way it formulates the drug is special, but through the evidence, Mylan was able to demonstrate the way AstraZeneca did it was something that had already been done before.
“When you added it all up, there wasn’t an inventive contribution,” says Lipkus.
He says one of the things judges have a difficult time doing is stepping into the shoes of the scientist confronted with this problem.
“Our formulators did a great job helping the judge step into those shoes and explain that ‘we know how to formulate these drugs together and there are pre-existing formulations that look exactly like this, just with different drugs’ and the judge was clearly persuaded by that evidence,” says Lipkus.
There is still an opportunity for AstraZeneca to commence an infringement proceeding against Mylan upon launch of the generic version of the drug.
|Roy Heenan, co-founder of Heenan Blaikie LLP, passed away Feb. 3. (Photo credit: Toronto Star)|
Norm Bacal, who was national co-managing partner for 16 years at Heenan Blaikie, was first a student in Heenan’s labour law class at McGill Law.
“That’s how far back we go,” says Bacal. “But I only got a ‘C’. The running joke in the firm for years after I was hired into the tax department was that I would never have to do any labour work and Roy would never have me.”
While he had only spoken with Heenan once in the last couple of years, Bacal says when he heard the news about his death he felt a “great sense of loss” for the person who had been a major influence on his life.
“Roy and Peter changed my life and sent it in a particular direction,” he says.
Montreal lawyer Karen Rogers also started her career with Heenan, working with him from 1990 to 2014.
“In one word, he was a passionate person and his passion was in the law, in advocacy, for his clients, the firm — and you could feel it,” says Rogers, now a partner at Langlois LLP and chairwoman of that firm’s litigation group. “As a young lawyer and even growing up with him, there was this enthusiasm and need to do the best of your ability. What he built at Heenan, he believed a lot in people and working as a team with respect and not only the lawyers but the support staff and to appreciate the value of the whole team.”
Rogers recalls Heenan giving speeches at the firm emphasizing that it was the “kindler, gentler firm.”
“That was very important to him,” she says.
Bacal, who also “grew up” at Heenan Blaikie, recalls Roy Heenan as another kind of teacher, saying he learned a lot from him about how to approach people.
“He cast a giant shadow because he was a big personality, but on top of everything else, he was a real gentleman, always. There are so many aspects to him as an individual and so many lessons that he taught that I think he did without meaning to teach.
“Part of what Roy taught I’m not sure he was even aware he teaching,” Bacal says. “He was charming and it didn’t matter who you were — whether it was the receptionists, the hostesses, Fidel Castro, he treated you the same way,” he says.
Heenan Blaikie became known as a firm that offered a different climate for lawyers to practise law and be treated differently. It rose to fame as having one of the top labour and employment practices in the country.
“He was a brilliant jurist and will always be remembered as such in the labour community,” says Bacal.
Rogers also worked with co-founding partners Peter Blaikie and Don Johnston. She recalls the firm having a mandate to not just work for big clients but do smaller files and help less fortunate clients — something that mattered to Heenan.
“I think he could have worked anywhere and he didn’t want to do law for money, he did it because he enjoyed it,” she says. “When you’d go to court, you’d see him running down the hallway in his gown — he was a passionate person who didn’t necessarily do things the way lawyers generally do things. He felt if you did well and excelled at what you did, the rest would fall into place.”
When the firm collapsed in 2014, it was “extremely hard” for Heenan, Rogers says, adding that for her even today it’s “difficult to understand.”
“The firm folding was not about the majority but the minority who did not necessarily get along, which caused the whole thing to happen. It wasn’t a financial issue. I was a partner at Heenan and I didn’t anticipate it, to be quite frank, and I’m pretty sure Roy didn’t anticipate it either,” she says. “It was probably one of the biggest deceptions of his life.”
Heenan will also be remembered for his role in the Canadian arts world. Rogers remembers the art in the Montreal office and how Heenan decided where each painting would go.
“He built, possibly single-handedly, the reputation of a number of Canadian artists, simply by the volume of Canadian art he bought over the years,” says Bacal. “He found many unknown artists and held on to their works until they became known.”
Bacal has written a book about the fall of Heenan Blaikie called Breakdown: The Inside Story of the Rise and Fall of Heenan Blaikie, which will be released Feb. 28.
As a leader, he was described as unique. “Even his detractors loved him,” says Bacal.
Visitation for Heenan is today at the Kane & Fetterly Funeral Home in Montreal. A funeral service will be held tomorrow, Friday Feb. 10, at 1 p.m. at St. George Anglican, 1101 Stanley Street in Church in Montreal.
B.C.’s Civil Resolution Tribunal, which handles strata disputes online, is poised to launch a second online system for settling disputes between small claims litigants.
|Civil Resolution Tribunal chair Shannon Salter sees a growing trend towards providing Internet-based delivery of dispute resolution systems and legal advice.|
“We will likely start with a smaller amount and gradually increase in time,” she says, which will also permit the tribunal to ramp up staff as the case volumes increase. Small claims courts in B.C. handle up to 11,000 cases annually.
Salter said the ability to resolve small claims disputes online extends the mediation efforts B.C. initiated for small claims and family disputes as an alternative to costly and time-consuming court litigation. “We have the opportunity to build upon the Court Mediation Program,” she says, as an online initiative will reach throughout B.C. Currently, the small claims mediation program only has five registries (Vancouver, North Vancouver, Surrey, Nanaimo and Victoria) and handles only claims of up to $10,000 except for Vancouver.
Salter said that only two mediation program registries are outside the Lower Mainland, making it difficult for rural residents to access the program’s mediation. The online tool can be accessed from any B.C. point that has Internet and is especially useful for individuals living in remote or rural areas, as individuals do not have to commute long distances, miss work, and arrange child care.
The online tool provides other benefits such as providing self-represented litigants, who cannot afford a lawyer, with legal information lessening confusion over the issues and process. Also, in many outlying areas of B.C. a lawyer shortage exists and finding legal advice can be challenging.
The small claims dispute tool is riding on the success of the CRT’s strata dispute system launched in July 2016 on its website becoming Canada’s first such online site. The strata tool has had 4,000 hits since its launch with users running the gambit from the curious to individuals seeking legal information to solve their own disputes to the 230 cases that have moved forward to mediation or adjudication.
“The model is about bringing the justice system to where people are and to make it simple to understand,” says Salter, who used three language experts to design a style guide that ensures all legal information is rendered to a grade six reading level. As well, the government forms have also been stylized to be easy to understand and fill out.
Salter said the strata software tool has been designed as a “a guided pathway” that takes individuals with a complaint through bite-sized pieces of legal information that can help determine whether their issue is a legal complaint, what are their rights and provides some help in how to settle the dispute (pamphlets and letters are available online). The process is geared towards self-resolution of disputes. If the individual is not able to resolve the issue, CRT can provide the mediation and adjudication.
The payback of a tool that is user-friendly and informative, says Slater, has been office staff spend less time answering questions or searching for more information and can spend more time dealing with individuals who may be illiterate or have language issues.
She said the Internet delivery model is geared to be user-friendly for both strata and small claims users. “We know that 92 per cent of people are on-line every day in B.C.,” she said. “People email, text and Google and so we are not asking them to do anything that is more difficult.”
The CRT’s first six months of operation has shown only two requests for non-email communications, fewrequests for hard-copy forms and individuals using the strata tool after work. “We found that 45 per cent were filling out their applications outside of work, typically on weekends or in the evenings,” she says, adding it is reflective of how the on-line tool is adaptable to user needs.
Salter said the small claims tool will be more complex than that which serves strata users as only a few statutes pertain to strata disputes. Small claims can affect a breadth of statutes and as case volumes increase, more information will be detailed on the website as legal expert opinions and information is added.
The CRT staff form an interdisciplinary team, with several lawyers. The CRT’s executive director and registrar is lawyer Richard Rogers. There are seven resolution support clerks who assist individuals attempting to resolve their own disputes. Five facilitators or case managers mediate disputes and are led by lawyer Kandis McCall, director of case management.
“In addition, there are 16 part-time tribunal members who are also lawyers from throughout the province,” she says, adding that these members, writing adjudication decision have gone through sessions to ensure decisions are written in “plain language — which can be a challenge for lawyers.” As well, facilitators have been briefed on how to collect information in disputes that have to go forward to adjudication. “Administrative law principals kick in,” she says as parties have the opportunity to exchange information and cross examine via conference calls.
Salter believes that the model of online tribunals and the Internet to provide access to justice and legal information will be a deepening trend. “MyLawBC offers solutions for separation agreements (using a Dialogue Tool) and help with a will,” she says. While not a tribunal, the Legal Services Society website does offer legal help for those unable to afford or access a lawyer. The B.C. Residential Tenancies Branch, she said, is also using the Solution Explorer software to field and resolve landlord and tenant disputes.
“We have to find creative new ways to connect people to the services they need and one way is to provide access justice on line,” she says.
Despite much talk over the last decade around boosting diversity and inclusion in law firms, women and racialized lawyers continue to be under-represented in the Canadian legal profession with Caucasian men continuing to far outnumber those two groups in senior leadership roles, according to a study from the Canadian Centre for Diversity and Inclusion.
In fact, the study shows Caucasian men who responded to the survey have the greatest odds of being an equity partner, and they are seven times more likely than racialized women to be an equity partner.
The study, “Diversity by the Numbers: The Legal Profession,” conducted by the CCDI in partnership with the Canadian Bar Association, shows the representation of minority groups in the legal profession has not changed substantially over the last three years that the CCDI has been collecting data. In 2014 and 2015, 73.99 per cent and 76.88 per cent of senior leader respondents were men. In 2016, 75.34 per cent of senior leader respondents to the survey were men and 90.78 per cent of senior leaders were Caucasian.
In 2014 and 2015, 89.28 per cent and 88.91 per cent of senior leader respondents were Caucasian respondents, respectively. Another statistic of note is that 81.9 per cent of senior leaders are equity partners.
“Results from 2014, 2015 and 2016 do not show a shift towards a more diverse and inclusive workforce, particularly in partner and leadership roles,” the report states.
The study, sponsored by Borden Ladner Gervais LLP, Cassels Brock & Blackwell LLP, Dentons Canada LLP, McCarthy Tétrault LLP and Miller Thomson LLP, shows women and racialized respondents are under-represented in equity partner and senior leader roles and over-represented as associates and articling or summer students.
Authors of the report say factors contributing to the perpetuation of these numbers include “inflexible working conditions, rigid firm culture, high client expectations and overall economics of the profession.”
While some might point to a tough economy since 2008, Deanna Matzanke, director, measurement and analytics at the CCDI, says the economy is a “significant red herring” and what the report shows is “a compelling validation” that the current law firm model makes it difficult for women and minorities to rise to equity partner positions.
“ . . . the process of billable hours, the emphasis placed on client relationships, and the hierarchal ‘Old Boys Club’ network in law firms do not support or foster a diverse and inclusive environment.”
The report goes on to say that women find themselves in a difficult position when faced with trying to balance family needs with law firm demands. Also, “ . . . lawyers from minority groups do not have the same social and cultural capital to network and find mentors who relate to them, because the pool is very small.”
That means many leave the law firm culture for more flexible and accommodating environments elsewhere, such as in-house roles or solo practice.
Matzanke, a lawyer herself, says the results of the study are disappointing and show that diversity and inclusion are not being successfully implemented in the legal profession, despite the fact the pool of potential lawyers in law school has increased in diversity and at the associate level at law firms shows fairly high diversity.
The majority of racialized respondents in the legal profession are Asian, while all other groups show very small representation.
A total of 11 firms from nine provinces and one territory participated in the 2016 survey. Firms were invited to participate directly by CCDI via the Law Firm Diversity and Inclusion Network, and the Canadian Bar Association sent a letter to all members.
“There’s nothing surprising here really,” says Level Chan, a partner with Stewart McKelvey LLP in Halifax and the CBA’s representative on the CCDI’s advisory committee.
“As to why we’re not moving the needle much, I think it’s a matter of retention and advancement, and as you see particularly with women, there continues to be over-representation at the associate and entry level areas of the firms, but we’re not keeping them. I think that in turn is translating to having fewer people available for senior roles and as equity partners. That is the ongoing issue we’ve had in the legal profession.”
Chan argues the economy has played a factor as he says “many law firms” have gone through rounds of layoffs and that would impact the ability of people to get into partnership roles as well.
In-house lawyers and their powerful role in the market is also a big factor. With law firms under regular scrutiny by corporate clients on use of the billable hour, the ability to maintain revenue streams has been a challenge.
“My anecdotal observation is that, of course, when there is less work there is less billable hours and less billings that would translate into the numbers admitted to partnership,” he says. “One of the common responses from clients to reduce their legal costs is to hire in-house lawyers and find internal resources to do due diligence or review contracts, so that is driving that change on the in-house side, too.”
There are also more attractive roles for in-house lawyers seeking something different from the usual private practice path.
Chan says from what he has seen, those lawyers leaving big law firms are women and other minorities being drawn to in-house positions offering certain elements not offered in traditional law firm compensation schemes, such as pensions, benefits or other financial incentives.
“So long as you’re not getting racialized lawyers as partners, you’re similarly not really going to get racialized people in leadership roles and that also applies with women,” says Chan. “Certainly, I think firms are making a concerted effort to try and increase representation in leadership and I think there have been attempts to get more women in senior roles. While women are still underrepresented, there are still a larger pool of women to draw on for partners than there are racialized lawyers.”
Kate Broer, partner with Dentons Canada and a member of the CCDI’s advisory committee, agrees with Chan that lawyers have a “broader range of options” other than the traditional path of private practice and many are moving into in-house roles or to other opportunities.
The war on the billable hour may also be influencing who remains at the top of many law firms. Firms are generally taking on fewer students, and Broer says gone are the days of “guaranteed hire-backs.”
But times are changing and if firms are to retain certain talent and appeal to a new generation of clients that want to see greater diversity of talent and for their own staff who want better life balance, firms will have to better address the issue. Broer says these days it’s not only women who want to take time away from their careers to raise children but men, too.
She also points out that women are gaining voice at the top of some large firms. This year, Dentons Canada elected five women to its board of 10 directors in Canada. That is an increase from two out of 10 in the previous year and in 2009 none of the members of the board were women.
Although the CCDI tried to include Canada’s 22 law schools in the survey to provide a comparison of students enrolled against the broader profession, the schools did not participate this year, although it was originally scheduled to be conducted this year.
“My impression is there is a huge importance in getting that law school data,” says Chan. “I know in speaking to deans at law schools they do see it as an issue and are working on it, but no law school has really been particularly open and transparent with respect to that other than programs they would already have in place.”
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