August 2010 by Ontario Bar Association

Official Magazine of the Ontario Bar Association - A Branch of the Canadian Bar Association

August 2010 | Vol. 35 No. 4

EnBref

Brieflyspeaking The Paralegal Question

Examining the rules that regulate the profession

Electronic Documents

New book navigates the world of E-Discovery

Shutterbug! 2010 Awards Season Snapshots to make you smile

T g n rati

Cele

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CLE PUBLICATIONS

White Sale

• • •

OBA Professional Development | CLE Programs - OBA Advantage FEATURES • Practice specific • Timely • Cost effective

• Current topics • Excellent materials • Green Discount - details online

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Mark Your Calendar Now for FALL/WINTER 2010 Annual CLE Programs Fundamentals of Employment Law (YLD) – Tuesday, September 21 Interactive and Digital Media: The (R)evolution Continues – Wednesday, September 29 “Bread and Butter” Issues in Family Law – Thursday, September 30 Trusts, Trustees, Trusteeships 2010 – Friday, October 1 (am) Tax Considerations for Succession Planning, Trusts and Estates Practitioners – A Practical Planning Approach – Friday, October 1 (pm)

www.oba.org/pd

for a complete listing of programs

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BRIEFLYspeaking OBA Officers/ Comité directeur de l’ABO Carole J. Brown President/Président Lee Akazaki Vice President/Vice-président Douglas R. Downey Secretary/Secrétaire Jonathan C. Yen Treasurer/Trésorier Roderic Ferguson, Q.C. Chair, Professional Development/ Président du développement professionnel Jamie K. Trimble Immediate Past President/Président sortante Steve Pengelly Executive Director/Directeur exécutif Editorial Board/Comité rédacteur James Morton Chair / Président Steinberg Morton Hope & Israel LLP Nancy Cooper Nancy E. Cooper Law Office Alastair Clarke York Community Services

22 24 27 33

HST: Anything But Harmony

Paralegal Regulation

Mr. Premier Returns Home

A Few Words On Publication Bans

The Honourable Justice Heather McGee Superior Court of Justice Chantal Brochu Buset & Partners LLP

FEATURES

The Honourable Doug Lewis Lewis Downey Tornosky Lassaline & Timpano

The Ontario Bar Association Congratulates The June 2010 Calls To The Bar | 17

Jeffrey S. Percival Ogilvy Renault LLP

In Memoriam: Gregory T. Evans | 25

Maria Sagan Student Editor / Rédactrice étudiante

The Current State of Paralegal Regulation In Ontario: Redefining Ontario’s Legal Community | Jeffrey S. Percival | 26

J. Andrew Sprague Miller Thomson LLP

Paralegals – The Rules, Regulations and Codes of Conduct | Paul D. Paton | 24

Mr. Premier Returns Home | Mitch Frazer and Kathleen Davis | 27 Security Operations at the G8/G20 | Ronald G. Atkey | 28

Questions or Comments? / Questions ou commentaires?

Hommage a Bastarache/Honouring Michel Bastarache | David Leitch | 30

Editorial Team, Briefly Speaking/ Rédaction, En bref

Small Firm Expo | Joe McCallum | 32

Julia Hanigsberg Ryerson University Chair, Public Affairs Committee Président, Comité des affaires publiques

A Few Words On Publication Bans | James Morton | 33

Robert Mitchell Director, Communications and Marketing/ Directeur, communications et marketing 416-869-1047 ext/poste 318 rmitchell@oba.org Cheryl Crocker Communications and Marketing Specialist/ Spécialiste de communications et marketing 416-869-1047 ext/poste 309 ccrocker@oba.org Rob Gilmour Advertising Sales Vente d’annonces 416-869-1047 ext/poste 406 rgilmour@oba.org Filippo Conte Bilingual Communications Specialist/ Spécialiste bilingue de communications publiques 416-869-1047 ext/poste 346

Making Dollars and Sense of “Electronic Production” | James Morton | 34 Bonnie Tough to Receive Civil Litigation Top Honours | 35 OBA Award Season | 36

Janet Weldon Graphic Design/Graphisme 416-869-1047 ext/poste 363

Book Review – The Law of Electronic Discovery | David Outerbridge | 14

Publications Agreement Number 40069139 Return Undelivered Canadian Addresses to: OBA | 300-20 Toronto St Toronto, ON | M5C 2B8

On the Cover: Top: Award for Distinguished Service Recipient; Jonathan Speigel with Jacqueline Armstrong Gates Bottom Right: OBA Presidents’ Award Recipient; Roy McMurtry with OBA President Carole J. Brown Bottom Left: Ontario Attorney General, Chris Bentley

Just For Laughs: Lawyers – HST: Anything But Harmony | Marcel Strigberger | 22

The opinions expressed by the authors in Briefly Speaking are not necessarily the approved views of the OBA.

Briefly Speaking • En Bref | August 2010

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Nota BenE

nota bene nota bene

N ot a Bene bene nota bene nota bene nota bene nota bene nota bene nota

The Honourable Mark L. Edwards, partner with the firm Beard Winter in Toronto, is appointed judge of the Superior Court of Justice of Ontario (Newmarket), to replace Mr. Justice H. O’Connell, who was transferred to Durham effective March 21, 2010. Mr. Justice Edwards received a Bachelor of Arts from Queen’s University in 1975 and a Bachelor of Laws from Dalhousie University in 1979. He was admitted to the Ontario Bar in 1981.

Mr. Justice Edwards began practising with Beard Winter in 1984 and, until the date of his appointment, was managing partner. He was an associate with Osler Hoskin & Harcourt from 1979 to 1984. His main areas of practice are civil litigation, tort and insurance law, criminal law, family law, corporate and commercial litigation. Mr. Justice Edwards has been a guest speaker at various conferences offered by the Advocates Society and the Law Society of Upper Canada. He has coached both soccer and hockey teams in the Etobicoke community.

The Honourable Kevin W. Whitaker, Chair of the Ontario Labour Relations Board, in Toronto, is appointed a Judge of the Superior Court of Justice of Ontario (Toronto) to replace Madam Justice A. Karakatsanis, who was appointed to the Court of Appeal on March 26, 2010. Mr. Justice Whitaker received a Bachelor of Arts from Queen’s University in 1979 and a Bachelor of Laws from Osgoode Hall Law School in 1984. He was called to the Ontario Bar in 1986.

Mr. Justice Whitaker has been Chair of the Ontario Labour Relations Board since 2001. Since 2005, he has been Chair of the Ontario Colleges Relations Commission and the Ontario Education Relations Commission and, since 2008, Special Advisor to the Ontario Minister of Training Colleges and Universities on the implementation of the Ontario College of

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nota bene nota bene Trades. He was a founding and managing partner of Ryder Whitaker Wright and Chapman (1989-1995). His main areas of practice are adjudications, labour, employment and administrative law. Mr. Justice Whitaker was a regular speaker for the Law Society of Upper Canada continuing education programs.

We’re

trying

something

new

Briefly

Speaking

with a Letters to the Editor section that lets you, our readers, have your say about the editorial content and direction of the official magazine of the OBA. You can contact us by e-mail at brieflyspeaking@oba.org or opt for “snail mail” at: Briefly Speaking Ontario Bar Association 20 Toronto St., Suite. 300 Toronto, Ontario M5C 2B8 We want to hear from you about the quality of the articles, the look and design of the magazine and its value to you as a practising member of the Bar. It’s your magazine; it’s time you told us what you think. Don’t hesitate to offer suggestions, constructive criticism or story ideas. Address your thoughts to Letters to the Editor, Briefly Speaking at either address provided and we will print your responses in the forthcoming October issue. Keep your thoughts to 250 words or less. We look forward to hearing from you.

August 2010 | Briefly Speaking • En Bref

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spotlight on sections

Municipal Law David J. Potts

n June 7, 2010, the Municipal Law Section wound up the 2009-2010 term with its end of year dinner program at the Albany Club. The Section was honoured to present the 2010 Award of Excellence in Municipal Law to Leo Longo of Aird & Berlis LLP. The new Section executive was elected and the contributions of the outgoing Section executive and OBA administration were recognized including those of Blossom Pangowish, Sections Coordinator.

The dinner marked the end of an active year for the Municipal Law Section. In September 2009, the Section contributed to the OBA’s submission to the Law Society of Upper Canada’s Paralegal Committee respecting Paralegal Exemptions. Later that month, on behalf of the OBA, the Section provided a submission to the Standing Committee on Government Agencies respecting the Committee’s review of the Ontario Municipal Board. The submission supported a continued role for the Ontario Municipal Board as an independent quasi-judicial administrative tribunal and encouraged the Province to ensure that the Board is well funded and resourced with qualified members and a professional staff, each appropriately compensated for their duties. On September 8, 2009, a delegation of Section members appeared before the Standing Committee to present the submission and to respond to the Committee’s questions.

In November, the Section held two successful programs: a joint program with the OBA’s Environmental Law and Natural Resources and Energy sections and with the Law Society of Upper Canada, “The Green Energy Act and Regulations: Implementation Reforms and Issues”, and a dinner program, “Municipal Law – Regulating Council Conduct”.

of the Planning Act, the standard of review and nature of the appeal in property standards appeals, the interpretation of Official Plans and the determination of legal non-conforming use rights. On May 4, 2010 we presented, “Having Regard to Decisions of Municipal Councils”. The dinner program explored, in detail, Planning Act, s. 2.1 requiring that approval authorities and the Ontario Municipal Board “have regard to” decisions of municipal councils including the Ontario Municipal Board’s interpretation, the implications of the Divisional Court’s recent decision in City of Ottawa v. Minto Communities Inc. and implications for processing and structuring development applications. 2010-2011 promises to be an exciting term for the Municipal Law Section under the leadership of incoming Chair, Jason Park. David J. Potts is the Chair of the Municipal Law Section

On December 10, 2009, we presented “Counsel at Municipal Council”. This program coincided with a meeting of the Municipal Law Departments Association of Ontario and Ministry of Municipal Affairs and Housing Legal staff. The program focused on appearances at council and representing and advising municipal council and staff on matters that arise on the council floor and outside the council chamber including issues related to closed meetings, lobbying and procedural fairness. In February, the Section participated in the OBA’s Annual Institute: “Municipal Law - A Primer on Current Municipal and Planning Law Issues.”

On April 8, 2010, the Section held a dinner program, “Municipal Law – The Three Legal Tenors”. An esteemed panel of Superior Court Justices, Howden, Lederer and Lauwers engaged in an insightful discussion of recent Court decisions including in relation to the interpretation of s. 2.1 Briefly Speaking • En Bref | August 2010

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Left to right: David J. Potts; 2010 Award of Excellence in Municipal Law Winner, Leo Longo; Jason Park

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President’s Message

A Clarion Call: Promoting Equity and Diversity in the Legal Profession President Carole J. Brown

As President, I have defined as a principal focus for this year, equity and diversity in the legal profession, and enhancing opportunities for advancement of our members. The principles of equity are recognized and enshrined in the United Nations Charter; the Universal Declaration of Human Rights, ratified by Canada in 1970; the Canadian Charter of Rights of Freedoms; the LSUC Rules of Professional Conduct and the Canadian Bar Association Code of Professional Conduct. As lawyers, we are acutely aware of our obligations under the law, and must remain vigilant to ensure that these laws are respected and enforced. It is incumbent upon all lawyers to provide a leadership role in the struggle against systemic discrimination in society.

I moved to Canada in 1975, a seminal time in the advancement of rights and freedoms in this country’s history; at a time when Toronto, my first Canadian home, was becoming a very multicultural city; when Francophones in Canada were seeking greater linguistic rights; when our indigenous and aboriginal populations were seeking to advance their rights; and when new immigrants were seeking new social and economic opportunities. I graduated from law school at a time when only 30 percent of the student population was female, and when only 10 percent of women lawyers remained in private practice after 10 years, so gender challenges and barriers were also present. I was in Canada for the advent of the Canadian Charter of Rights and Freedoms, which had a significant impact on all of our lives and caused all of us in Canada to be more aware of our rights, freedoms and obligations, and of means for advancing and balancing those rights and obligations in our society. The Canadian society has progressed since those days, and much has been achieved, especially in the defining of rights for equity-seeking communities in our country.

While we have come far, barriers in our profession, including societal, institutional and personal barriers, both obvious and hidden, continue to hinder the advancement of women and minorities in our profession. The face of our profession 4

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is not reflective of our society-at-large and lawyers from equity-seeking communities remain underrepresented in the practice of law. In the 35 years that I have been in Canada, our population has become increasingly diverse, and that multicultural richness is most evident in Ontario, and particularly Toronto, our most multicultural city.

With the increased demand among diverse communities to have services, including legal services, provided by professionals from the same equity-seeking communities, the business case for diversity is emerging. Lawyers from diverse communities have opened their law practices to meet this demand in their communities. As well, some of the most influential Fortune 500 companies in the U.S. and Canada have pledged to use their collective buying power to foster greater diversity in the service providers they retain, including law

“Business case for diversity”

firms, by directing work to firms which positively seek to advance women and minorities.

A panel discussion on equity and diversity was held at the December Council Meeting, with guest speakers from a variety of diverse communities. Following this successful panel and discussion, the OBA Equal Opportunity Committee was tasked with preparing proposals and recommendations for a three-year “action plan” to create initiatives and programs to address these issues. The OBA will now be moving forward with a diversity project which will include a variety of educational programs, an accessibility task force, website resource links and informational packages. We will be announcing the details of our program within the next few months.

In the interim, we must remain vigilant to ensure that the rights and opportunities of all members of our society are protected, promoted and that the rights enshrined in the Charter are fundamentally respected. The OBA is well positioned to provide a leadership role in ensuring that the interests and opportunities of all members of our profession are advanced. August 2010 | Briefly Speaking • En Bref

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Message de la présidente

Notre appel à l’action: la promotion de l’équité et de la diversité au sein de la profession juridique Carole J. Brown, Présidente En tant que présidente, j’ai désigné, comme principal objectif de cette année, l’équité et la diversité au sein de la profession juridique, et l’amélioration des occasions d’avancement pour nos membres.

Les principes de l’équité sont reconnus et garantis par la Charte des Nations Unis; la Déclaration universelle des droits de l’homme, ratifiée par le Canada en 1970; la Charte canadienne des droits et libertés; le Code de déontologie du Barreau du Haut-Canada, ainsi que par le Code de déontologie professionnelle de l’Association du barreau canadien. En notre qualité d’avocates et d’avocats, nous sommes tout à fait conscients de nos obligations sous le régime des lois, et nous devons rester vigilants pour nous assurer que ces lois sont respectées et appliquées. Il incombe à tous les avocats de se poser en chef de file dans la lutte contre la discrimination systémique dans la société. Je me suis installée au Canada en 1975, à une époque charnière pour la promotion des droits et libertés dans l’histoire de ce pays; à une époque où Toronto, mon premier domicile canadien, était en voie de devenir une ville hautement multiculturelle, où les francophones du Canada cherchaient à obtenir des droits linguistiques plus importants, où les populations autochtones luttaient pour la promotion de leurs droits, et où les nouveaux arrivants souhaitaient emprunter de nouvelles avenues de développement économique et social. J’ai reçu mon diplôme de la faculté de droit à une époque où un maigre 30 % de la population étudiante était composé de femmes, et où environ 10 % des avocates travaillaient toujours dans un cabinet privé au bout de dix ans. Les obstacles et les défis fondés sur le sexe étaient donc également présents. J’étais au Canada pour l’adoption de la Charte canadienne des droits et libertés, dont l’impact sur nos vies a été considérable et grâce à laquelle tous ceux et celles qui vivaient au Canada ont mieux compris leurs droits, libertés et obligations, et les moyens de promouvoir et d’équilibrer ces droits et obligations dans notre société. La société canadienne a su évoluer depuis cette époque, et des pas de géant ont été réalisés, surtout dans la définition des droits pour les communautés à la recherche d’équité dans notre pays.

Nous avons bien progressé, certes, mais des barrières au sein de notre profession, qu’elles soient de nature sociétale, institutionnelle ou personnelle, et qu’elles sautent aux yeux ou soient imperceptibles, entravent encore l’avancement des femmes et des minorités. Le visage de notre profession ne reBriefly Speaking • En Bref | August 2010

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flète pas notre société en général, et les avocates et avocats issus de communautés souhaitant obtenir l’équité demeurent sous-représentés dans la pratique du droit. Tout au long des 35 années qui se sont écoulées depuis mon arrivée au Canada, notre population n’a cessé de se diversifier, et cette richesse multiculturelle est la plus visible en Ontario, et plus particulièrement dans la ville de Toronto, la plus multiculturelle entre toutes.

Compte tenu de la demande de services croissante au sein des diverses communautés, notamment pour des services juridiques, fournis par des professionnels issus des mêmes communautés à la recherche d’équité, l’avantage commercial de la diversité gagne en crédibilité. Les avocats de diverses communautés ont ouvert des cabinets pour répondre à cette demande de leur communauté. Qui plus est, certaines des entreprises Fortune 500 les plus influentes aux É.-U. et au Canada se sont engagées à se servir de leur pouvoir d’achat collectif pour favoriser une plus grande diversité chez les fournisseurs de services auxquels elles recourent, dont les cabinets d’avocats, en confiant du travail aux sociétés qui favorisent de manière positive l’amélioration du statut des femmes et des minorités.

Une réunion d’experts portant sur l’équité et la diversité s’est déroulée à l’occasion de la réunion du Conseil de décembre et des conférenciers invités issus de diverses communautés y ont participé. À la suite de cette réunion fructueuse, on a confié au Comité de l’égalité des chances de l’ABO la tâche de préparer des propositions et des recommandations concernant un « plan d’action » pour prendre des initiatives et établir des programmes destinés à trouver des réponses à ces questions. L’ABO procédera à présent au lancement d’un projet de diversité qui englobera une panoplie de programmes d’éducation, un groupe de travail axé sur l’accessibilité, des liens vers des ressources en ligne, et des trousses d’information. Nous annoncerons les détails de notre programme au cours des prochains mois. Dans l’intervalle, nous devons faire preuve de vigilance pour nous assurer que les droits et les perspectives d’avenir de tous les membres de notre société sont préservés et promus, et que les droits garantis par la Charte sont fondamentalement respectés. L’ABO est bien positionnée pour se poser en chef de file pour ce qui est de garantir la promotion des intérêts et des possibilités de tous les membres de notre profession

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Supreme Court of Canada Update

Summaries Eugene Meehan, Q.C.

ere’s a summary of all appeals and all leaves to appeal (ones granted – so you know what areas of law the S.C.C. will soon be dealing with). For leaves I’ve specifically included both the date the S.C.C. granted leave and the date of the C.A. judgment below, in case you want to track and check out the C.A. judgment. This summary covers April 10 - June 2, 2010. If you’d like previous reports so you’re right-upto-date, let me know, and I’ll e-mail them to you: emeehan@langmichener.ca.

A subjective belief about what force is required is relevant, but the subjective belief must be based on reasonable grounds; that is, it must be based on grounds that are objectively reasonable in the circumstances.

ABORIGINAL & ENVIRONMENTAL LAW: FEDERAL & PROVINCIAL ASSESSMENTS

Yugraneft Corp. v. Rexx Management Corp. (Alta. C.A., August 5, 2008) (32738) May 20, 2010

APPEAL JUDGMENTS

Quebec (Attorney General) v. Moses (Que. C.A., April 24, 2008) (32693) May 14, 2010 In the context of the Cree and Inuit communities having signed the James Bay and Northern Quebec Agreement with the governments of Quebec and Canada in 1975, the S.C.C. held that if the mine project here is approved pursuant to the Agreement, the proponent may not proceed with the work without an authorization under s. 35(2) of the Fisheries Act, and that the issuance of any such authorization is to comply with the Canadian Environmental Assessment Act in accordance with its procedures, as well as the Crown’s duty to consult with the Cree in relation to matters that may adversely affect their rights under the Agreement. ASSAULT CAUSING BODILY HARM

R. v. Szczerbaniwicz (Court Martial Appeal Court, May 5, 2009) (33189) May 6, 2010 6

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CIVIL PROCEDURE: FOREIGN ARBITRAL AWARDS

Under international arbitration law, limitation periods are left to the local procedural law of the jurisdiction where recognition and enforcement is sought. The applicable limitation period is therefore the law of the province (in this case, Alberta). An arbitral award is not a judgment or a court order, and it therefore is not eligible for a 10-year limitation period, but is subject to the general two-year limitation period applicable to most causes of action. CRIMINAL LAW: CONFESSIONS

R. v. S.G.T. (Sask. C.A., September 18, 2008) (32890) May 27, 2010 Here, the S.C.C. held: •

the distinction between an admission and a confession is apposite. Under the rules of evidence, statements made by an accused are admissions by an opposing party and, as such, fall into an exception to the hearsay rule. They are admissible for the truth of their contents. When statements are made by an accused to August 2010 | Briefly Speaking • En Bref

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Supreme Court of Canada Update

•

• •

•

ordinary persons, such as friends or family members, they are presumptively admissible without the necessity of a voir dire. It is only where the accused makes a statement to a person in authority that the Crown bears the onus of proving the voluntariness of the statement as a prerequisite to its admission the derived confessions rule excludes statements which, despite not appearing to be involuntary when considered alone, are sufficiently connected to an earlier involuntary confession as to be rendered involuntary and hence inadmissible

it is not necessary, nor would it be appropriate on the record in this case, to decide whether the derived confessions rule extends to admissions made to ordinary persons

in deciding whether there was clear evidence that ought to have triggered the need for the trial judge to raise the issue on his own motion, an appellate court must consider the question from the perspective of the trial judge at the time the decision was made here, the most significant circumstance is that the defence consented to the admission of the evidence.

CRIMINAL LAW: VETROVEC WARNINGS

R. v. Hurley (Sask. C.A., August 5, 2009) (33301) May 14, 2010

The trial judge below did not point out to the jury that they should be cautious with regard to the evidence of a particular witness because of his possible motive to lie in order to get some advantage for himself in his own legal troubles or to collect a reward. While it is debatable that this omission was sufficiently serious in the context of this particular trial as to require appellate intervention, because of new forensic testing and DNA analysis, a new trial was necessary. FREEDOM OF THE PRESS: CONFIDENTIAL SOURCES

R. v. National Post (Ont. C.A., February 29, 2008) (32601) May 7, 2010

While the courts should strive to uphold the special position of the media and protect the media’s secret sources where such protection is in the public interest, this case here is not the usual one of journalists seeking to avoid testifying about their secret sources. This is a physical evidence case. It involves what is reasonably believed to be a forged document. The media claim to immunity from production of the physical evidence is not justified in the circumstances of this case, even if the end result proves to be information that may lead to the identification of the secret source(s). MUNICIPAL LAW: MUNICIPAL TAXATION OF FEDERAL UNDERTAKINGS Montréal (City) v. Montréal Port Authority (32881) April 15, 2010 Montréal (City) v. Canadian Broadcasting Corporation (32882)

Parliament intended Crown corporations and managers of federal property to make payments in lieu of municipal taxes on the basis of the existing tax system in each municipality, to the extent possible, as if they were required to pay tax as owners or occupants. The purpose of the Payment in Lieu of Taxes Act is to establish a system of payments in lieu that Briefly Speaking • En Bref | August 2010

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reflects the actual tax situation in the places where federal property is located.

LEAVES TO APPEAL GRANTED CLASS ACTIONS: COMMON ISSUES

In the context of monies paid by residents of long-term care facilities, what are the common issues? Her Majesty the Queen In Right of Alberta v. Elder Advocates of Alberta Society, James O. Darwish, Personal Representative of the Estate of Johanna H. Darwish, deceased (Alta. C.A., December 4, 2009) (33551) May 20, 2010 CLASS ACTIONS: CROWN IMMUNITY

Can a third party notice be brought against officials at Health Canada who had directed tobacco companies to develop, market, and promote light and mild cigarettes?

Her Majesty the Queen in Right of Canada v. Imperial Tobacco Canada Limited (B.C.C.A., December 8, 2009) (33559) May 20, 2010 CONSUMER PROTECTION IN QUEBEC: “CONGRATULATIONS, YOU JUST WON A VACUUM CLEANER”

Is an “Official Sweepstake Notification” that you have won a large sum of money misleading advertising, or simply part of the “advertising game”? Jean-Marc Richard v. Time Inc. and Time Consumer Marketing Inc. (Que. C.A., December 10, 2009) (33554) May 20, 2010 CREDITORS REMEDIES IN QUEBEC: GARNISHMENT Is the Quebec CSST exempt from garnishment?

Attorney General of Quebec v. Department of Human Resources and Social Development Canada, Commission de la santé et de la sécurité du travail- and -Rock Bruyère (Que. C.A., November 18, 2009) (33511) April 22, 2010 CRIMINAL LAW: WITHDRAWAL OF PLEA BARGAINS

After a plea bargain has been reached, but before a guilty plea entered, can the prosecution withdraw from the agreement? Olga Maria Nixon v. Her Majesty the Queen (Alta. C.A., August 13, 2009) (33476) April 22, 2010 HUMAN RIGHTS: RECOVERY OF LEGAL COSTS

Can the Canadian Human Rights Tribunal award legal costs?

Canadian Human Rights Commission v. Attorney General of Canada, Donna Mowat (Fed. C.A., October 26, 2009) (33507) April 22, 2010 IMMIGRATION: REIMBURSEMENT BY SPONSORS

Where an immigrant arrives in Canada and is then given social assistance (in this case Ontario), can their sponsor be obliged to reimburse the province? Attorney General of Canada v. Pritpal Singh Mavi, et al; Attorney General of Ontario v. Pritpal Singh Mavi et al (Ont. C.A., November 12, 2009) (33520) April 22, 2010

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Supreme Court of Canada Update PHARMACEUTICALS: JURISDICTION OF REVIEW BOARD; PRICING OF PHARMACEUTICALS Does the Patented Medicine Prices Review Board have jurisdiction to consider U.S. pricing for pharmaceuticals?

Celgene Corporation v. Attorney General of Canada (Fed. C.A., December 23, 2009) (33579) April 22, 2010 PROFESSIONS IN QUEBEC: WRITING TO A JUDGE; DISCIPLINE Did the content of a letter to a judge justify disciplinary action against the lawyer?

Gilles Doré v. Pierre Bernard, in his capacity as Assistant Syndic of the Barreau du Québec, Professions Tribunal and Attorney General of Quebec (Que. C.A., January 13, 2010) (33594) May 20, 2010 TAX: ‘REQUIREMENTS TO PAY’ BY REVCAN TO LAWYERS

Can RevCan issue Requirements to Pay with respect to tax liability of a lawyer where the lawyer held two accounts, a lawyer’s trust account, and a joint account with another individual? Canada Trustco Mortgage Company v. Her Majesty the Queen (Fed. C.A., September 15, 2009) (33422) April 22, 2010

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TOBACCO LITIGATION Can tobacco companies bring third party proceedings against Canada for contribution and indemnity? Attorney General of Canada v. Her Majesty the Queen in Right of British Columbia, Imperial Tobacco Canada Limited et al (B.C.C.A., December 8, 2009) (33563) May 20, 2010 TORTS: CROWN LIABILITY

Is there government negligence where the Ontario Ministry of Transportation buried asphalt and concrete waste from a highway reconstruction project in an unlined pit on a nearby dairy farm?

Bernard Gerardus Maria Berendsen et al v. Her Majesty the Queen in Right of Ontario (Ont. C.A., December 1, 2009) (33543) May 20, 2010

Eugene Meehan, Q.C. is the chair of the Supreme Court Practice Group with Lang Michener LLP.

August 2010 | Briefly Speaking • En Bref

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Advocacy In ACTIon

Reform Initiatives Continue Through the Summer Legal Aid The OBA continues to participate with other legal organizations as part of the Alliance for Sustainable Legal Aid (ASLA). Ongoing dialogue with Legal Aid Ontario will continue through the summer months regarding the transformation plans and its effects on both clients and lawyers. Pro-Active Government Relations

The OBA continues its successful pro-active legislative reforms initiatives, meeting with political and ministry staff in advance of legislation being tabled and continuing through to Committee hearings and clause-by-clause examination of bills.

Most recently, this has been done extensively with Bill 65, the Not for Profit Corporations Act, and Bill 68, the Open for Business Act (specifically dealing with the Commercial Mediation Act).

Current Working Groups • •

Administrative Justice for People with Capacity Issues Civil Rules Committee: • Audio/video of defence medical examinations • Guidelines for fixing costs

• Joint and Several Liability: Response to Law Commission of Ontario Consultation Paper •

Bill 65: Not for Profit Corporations Act

•

Mandatory Mediation

• •

Bill 68: Commercial Mediation Act

Family Law: Custody and Access Assessments

The Charity and Not-for-Profit Law Section and the Business Law Section have had significant input into Bill 65. It is anticipated that this bill will go to Standing Committee for hearings in August. Bill 68 will be at Standing Committee in mid-July, with clause-by-clause scheduled for the end of the month. The Civil Litigation and the ADR sections have continued their dialogue with the Ministry of the Attorney General to refine and improve this bill.

The Real Property Section had initial meetings with Ministry officials to discuss the Electronic Land Registration Services Act, which was passed as a schedule to the recent Budget bill. This bill provides a framework for the future and the section has a number of recommendations to bring forward in the interests of real estate lawyers across Ontario. The Trusts and Estates Law Section has forwarded a series of recommendations to the government pertaining to the bonding of Estates trustees. While there is no planned legislation, the government has indicated interest for the future and is exploring specific recommendations with the section. The Environmental Law Section provided comment on the proposed new Environmental Review Tribunal (“ERT”) Rules of Procedures set out in the draft “Guide to Appeals by Members of the Public regarding Renewable Energy Approvals under Section 142.1 of the Environmental Protection Act”. Briefly Speaking • En Bref | August 2010

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Save the date CBA Canadian Legal Conference in Niagara from August 15-17 CLC events will ensure you take in the full beauty and excitement of one of Canada’s premiere wine regions. The main conference sessions are taking place at the Sheraton on the Falls with receptions and events throughout the vineyards of Niagara. Opening Night Festivities at Table Rock Center are at the brink of the thundering falls while the closing evening will let you explore wine country.

2010 – A very good year! Watch for registration details in early spring at www.cba.org/Niagara2010

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Queen’s Park update The Queen’s Park Update provides a forum, on a regular rotation, for the views of the Attorney General and the Opposition Justice Critics.

Is it Time to... Reconsider a Powers of Attorney Registry? Ted Chudleigh, M.P.P. Halton On March 10, 2010 John O’Toole, Progressive Conservative MPP for Durham introduced Bill 3, Protection of Vulnerable and Elderly People from Abuse Act (Powers of Attorney), 2010. The intent of the Bill was to begin a discussion on the legislative framework concerning Powers of Attorney in Ontario and the potential gaps which have allowed, and potentially enabled, abuse.

The introduction of Bill 3 was motivated by concerns expressed by seniors, members of the legal and police communities, and financial institutions. Initially, fraud and financial exploitation of the elderly were at the root of these concerns. However, as the scope of the feedback increased it became clear that the problems transcended age and financial matters. To address these concerns Bill 3 would have, amongst other things, amended the Substitute Decisions Act to provide for the establishment of a Powers of Attorney registry maintained by the Public Guardian and Trustee.

At the outset, it is important to recognize that this registry would not have addressed a number of existing concerns. For example, a registry, by itself, would not have eliminated fraud, guaranteed the mental competence of the grantor or clarified vague conditions. A registry may, however, have provided a more simplified and transparent process. It may have reduced the risk of irregularities in the execution of the Power of Attorney, acted as a preventative measure to help decrease abuse, and improved access for pre-authorized professionals to help ensure the realization of a grantor’s wishes. A registry of this kind is not unique nationally or internationally.

In British Columbia a non-profit charitable organization, in partnership with the Law Society of British Columbia, established and maintains Nidus, a voluntary registry for personal planning documents including Enduring Powers of Attorney. A person may register basic information about the Power of Attorney as well as a scanned copy of the document. Access to the registry is limited to individuals in authorized organizations.

In 2008, the Government of Alberta amended the Personal Directives Act establishing a registry for Personal Directives,

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documents similar to Ontario’s Power of Attorney for Personal Care. Like Nidus, Alberta’s registry is voluntary and allows preapproved professionals to access an agent’s contact information. It does not allow a copy of the Personal Directive to be registered.

Registries for Powers of Attorney are also in place internationally. In the United States, a number of private and State level registries exist. The United Kingdom, under the Mental Capacity Act 2005, created a mandatory registration process for Powers of Attorney and Court of Protection orders.

In certain situations, registration of substitute decision makers is also mandatory in Ontario. Under O. Reg. 99/ 96 the Public Guardian and Trustee must register Guardians of Property appointed by him or her and court appointed Guardians. Moreover, before any real estate or title transaction can be completed under a Power of Attorney, the Power of Attorney must be registered under either the Registry Act or the Land Titles Act, as applicable.

After second reading debate on April 15, 2010, the Government voted against Bill 3. Conversely, although valid concerns regarding privacy were raised, both PC and NDP MPPs encouraged the passage of Bill 3 in order to continue discussion at Committee. Ongoing abuse of Powers of Attorney and examples of registries currently in use indicate that this discussion may be overdue. They demonstrate that the financial and privacy concerns expressed during consideration of Bill 3 need to be addressed as much as the current abuses and gaps that exist in our system. The Protection of Vulnerable and Elderly People from Abuse Act (Powers of Attorney), 2010 will be amended and re-introduced. I encourage members of the OBA to continue this discussion and to contact the PC Caucus with suggestions and feedback. Ted Chudleigh is the M.P.P. for Halton and the Progressive Conservative Critic to the Attorney General.

August 2010 | Briefly Speaking • En Bref

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Update Queen’s Park La mise à jour de Queen’s Park fournit un forum, en rotation régulière, pour les opinions du procureur général et les porte-parole de justice de l’opposition.

Est-il temps de considérer un registre pour les procurations? Le 10 mars 2010, John O’Toole, député provincial pour Durham a introduit le Projet de loi 3, Loi de 2010 sur la protection des personnes vulnérables et des personnes âgées contre les mauvais traitements (procurations). L’objectif du projet de loi était de débuter une discussion à un niveau cadre législatif au sujet des procurations en Ontario et les ouvertures potentielles qui ont permis et, en puissance, facilité l’abus. L’introduction du Projet de loi 3 a été incitée par les inquiétudes exprimées par les personnes âgées, les collectivités juridiques et policières et les institutions financières. Originairement, la fraude et l’exploitation financière chez les personnes âgées étaient la base de ces préoccupations. Cependant, compte tenu de l’étendu de la rétroaction, il est devenu évident que les problèmes dérogeaient sur des questions d’âge et de finances.

Pour s’attaquer à ces inquiétudes, le Projet de loi 3 aurait, parmi autres choses, modifié la Loi de 1992 sur la prise de décisions au nom d’autrui afin de prévoir l’établissement d’un registre pour les procurations et géré par le bureau du Tuteur et curateur public.

D’abord, il est important de reconnaitre qu’un registre n’aurait pas réponds à plusieurs inquiétudes existantes. Par exemple, un tel registre n’aurait pas éliminé la fraude, garantie la capacité mentale du mandant ou éclaircie les conditions vagues. Toutefois, un registre aurait pu fournir un processus simplifié et transparent. Il aurait pu réduire le risque d’irrégularités lors de l’exécution de la procuration, agir en tant que méthode préventive pour aider à réduire l’abus et améliorer l’accès aux professionnels pré-autorisés afin d’assurer la réalisation des vœux du mandant. Un registre de ce genre n’est pas tout particulier nationalement ou internationalement. En Colombie-Britannique, un organisme caritatif à but non lucrative, en partenariat avec le Law Society of British Columbia, ont établie et gèrent Nidus, un registre volontaire pour les documents de planification personnelle y compris les procurations perpétuelles. Une personne peut enregistrer de l’information de base concernant la procuration ainsi qu’une copie du document balayé par scanner. L’accès au registre est limité aux individus d’organismes autorisés. En 2008, le gouvernement de l’Alberta a modifié leur Personal Directives Act en établissant un registre pour les Briefly Speaking • En Bref | August 2010

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directives personnelles, les documents semblables aux procurations relatives aux soins de la personne de l’Ontario. Comme Nidus, le registre de l’Alberta est volontaire et permet aux professionnels pré-autorisés d’accéder aux coordonnées de l’agent. Il ne permet pas l’enregistrement d’une copie des directives personnelles.

Les registres pour les procurations sont également en place internationalement. Aux États-Unis, il existe plusieurs registres privés et d’État. Le Royaume-Uni, en vertu du Mental Capacity Act 2005, a créé un processus d’enregistrement obligatoire pour les procurations et les ordres de protection de la Cour. Dans certaines situations, l’enregistrement de la personne responsable des décisions au nom d’autrui est obligatoire en Ontario. En vertu du Règl. de l’Ont. 99/96 le bureau du Tuteur et curateur public doit enregistrer les tuteurs aux biens, nommés par lui or elle et les tuteurs nommés par le tribunal. De plus, avant qu’une opération immobilière ou de titre soit complétée en conformité avec la procuration, cette dernière doit être enregistrée sous la Loi sur l’enregistrement des actes ou la Loi sur l’enregistrement des droits immobiliers, selon le cas. À la suite d’une deuxième lecture le 15 avril 2010, le gouvernement a voté contre le Projet de loi 3. Quoique des inquiétudes valides aient été soulignées, les députés du Parti PC et du NPD encouragent l’adoption du Projet de loi 3 afin de poursuivre une discussion en comité.

L’abus progressif des procurations et les exemples de registres actuellement en vigueur indiquent qu’une discussion sur cette question est en retard. Au cours des discussions du Projet de loi 3, plusieurs inquiétudes sur la confidentialité et l’aspect financier ont été exprimées. Ainsi, ces questions doivent être abordées autant que l’abus actuel et les ouvertures présentes dans notre système. La Loi de 2010 sur la protection des personnes vulnérables et des personnes âgées contre les mauvais traitements (procurations) sera modifiée et réintroduite. J’encourage les membres du ABO de poursuivre cette discussion et de communiquer avec le Caucus PC afin de partager des suggestions et de la rétroaction. Ted Chudleigh est Député pour la région de Halton et le Porte-parole de l’opposition pour le Procureur général.

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Behind the bench

Behind the bench Introducing you to Ontario’s Judiciary Justice Stephen Goudge Billion Dollar Issues Louise Harris

Justice Stephen Goudge admits that “substantively, I know a ton more law than I did when I first got to the Court of Appeal”. He says he thrives on the intellectual stimulation and satisfaction that come in the vast array of cases before the Court.

“If you believe, as I do, in the law as an instrument of social engineering, then this is the best place to be,” says Goudge.

Describing the collegiality that exists within the Court of Appeal, Goudge depicts them as akin to a firm of 23 who are very compatible, interested and highly intelligent. But if he isn’t sitting, or engrossed in the newest historical book, you just may find him on the streets of New York City; a city, he says, wears its heart on its sleeve.

“There’s such variety and a pulse of life that happens there. And you’ll find it in London and Paris as well. It’s unique, in my opinion, and it’s what makes the three my favourite destinations”. Goudge is also looking forward to a trip to Northern India next spring, with his wife Reva.

Goudge attended the University of Toronto and the London School of Economics before attending law school at U of T. Called to the bar in 1970, he articled and practised at Cameron Brewen and Scott, which he called “a boutique firm before there were boutique firms”.

“We were a general litigation firm and we did just about anything that came in the door,” says Goudge. “Ian Scott, a superb talent, was the fellow I learned litigation from and he was the most wonderful teacher. He was like an older brother to me. We did a lot of work with the Civil Liberties Association because Ian had the kind of litigation practice that appealed to Allen Borovoy and what was coming in his door. He started it and the rest of us followed suit.” The firm grew to a group of nine, and in 1982, Gordon Henderson approached Scott and Goudge to merge with Gowlings and head up a litigation arm of the firm. Scott stayed until 1985 when he left for a political career, ultimately becoming Ontario’s Attorney General. Goudge stayed on and eventually became the managing partner of the Toronto office “in the days when you could be a managing partner and still maintain a practice. “ 12

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Appointed directly to the Court of Appeal in 1996, Goudge believes that historical practice offers tremendous benefit as appointees have direct and current links to the bar, which builds the necessary bench/bar bridges. Approximately 35% of Court of Appeal appointments have been made directly from practice.

Goudge doesn’t see an easy road ahead. “There is no single solution that will be enough and there is no silver bullet to ensure access to justice. Every constituency within the system is affected and we need to pay attention. From disputes over right of access, to huge corporations with billion dollar issues, in this day and age they cannot wait for the system to grind through. The challenge ahead cannot be underestimated, and we must be vigilant if we are to make real what the rule of law promises.”

Justice Richard Humphrey Judging the Far North Louise Harris

Had it been his mother’s call, Regional Senior Justice Richard Humphrey of the Ontario Court of Justice wouldn’t have entered law school at all. “My dad was a watchmaker and my mom was the church secretary. She wanted me to be a teacher. University was already very expensive, but to follow it with law school was going to be a stretch”, he recalls. “Initially, with my B.A. in philosophy and a minor in psychology, I applied to be a physical education teacher. I attended a law class in 3rd year at Laurentian that was taught by Claude MacMillan and that was it for me. I came home and told my parents I was going to law school.” Justice Humphrey graduated from University of Western Ontario Law School and “went home” (Sudbury born and raised) to do his articles with Warren and Rolston. He worked at the firm as a summer student, ultimately spending his career there

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behind the bench in a general practice which included estates, real estate, family and criminal law. For 12 years, he was a part time Crown.

This September, he will celebrate his 33rd wedding anniversary to Pamela, whom he first saw when he was an articling student called in to speak in a courtroom to a grade 12 class on a day visit. He says they both “took note” of the other and several years later began to date and ultimately married. His swearing in ceremony in July, 1999 took place in that same courtroom.

Humphrey is the father of two, Joel (32) a Chartered Accountant in Sudbury, and Raegan (30) a nurse also living in Sudbury. And the very proud grandfather of Makinley (3), Nico (1) and Jackson (almost 1). In another interesting set of circumstances, Jackson (Joel’s son) and Nico (Raegan’s son) shared the same due date. Easily the most interesting and challenging aspect to his role is presiding over the fly-in courts in Northern Ontario. Those challenges are foreign to his southern Ontario judicial colleagues.

Humphrey says, “Weather permitting, I leave from Sudbury and fly to Cochrane to pick up staff, equipment and food. Then we fly into Attawapiskat. The dockets are very long and the process is slow. When court sits, I am joined at the front of the court by two elders. Everything is done through Cree interpreters so it’s an intense process. Generally, I will hear four pleas and then retire to my chambers (the kitchen – often using the oven for heat) with the two elders and we discuss the facts. I hear their input and then give them my sentence. Interestingly, we have only ever had one disagreement, with the elders being somewhat less lenient. In the afternoon, we will hear a few more pleas through the same process. Then we fly back to Cochrane overnight and repeat the same process the next day. We do that eight times a year.

Despite the challenges and adversity in judging in the far north, there is a sense of intrigue, says Humphrey. “You can’t help but be amazed at the good natured resilience of the native people despite their circumstances. It’s patent and palpable. At the end of the day, you sometimes wonder if you’re making a difference, but you do have a sense of wonderment about it all.”

Justice Stephen Glithero Loves the Courtroom Paul Sweeny

Justice Stephen Glithero, Regional Senior Judge of the Superior Court of Ontario, Central South Region, says he has no idea how he ended up in law. He goes on to reveal that as an undergraduate student at the University of Western Ontario, he was taken by his Residence Don to the old London courthouse to watch a murder

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trial. His first time in a courtroom, he heard a creak as the trap door in the prisoner’s box opened and from the depths came a shackled William Snowball, eyes blinking at the bright light. Young Stephen was present when Snowball was sentenced to be hanged. This event left an indelible mark on Glithero, who did not know that at that time death sentences were commuted.

In April, after completing his undergraduate degree, he set off to travel Europe for one year with the small fortune he saved. By mid-July, he was home, and broke. With no job prospects on the horizon, he applied to four law schools. He was accepted by two, which he promptly turned down, and was rejected by two. When his future wife, Joanne, was accepted into Teacher’s College at Western, young Stephen told her to get an apartment and he would “sort out this law school problem.” On the first day of law school at Western, he went straight to the Dean’s office and requested admission. The Dean sent him away as his application had already been rejected. On the second day, he reappeared and the Dean sent him away again. Undaunted, Stephen appeared on the third day. The Dean, sensing the stand-off could continue indefinitely, told Stephen to go to class. Despite intending to practise in a smaller community, Stephen was persuaded to article at Lang, Michener in Toronto, where he was given the opportunity to experience the full range of legal practice. For 20 years, he mainly practised criminal litigation in Cambridge and Kitchener. Frequently in the office on weeknights and Sundays, a schedule necessitated as a busy criminal lawyer who loves the courtroom, there was still time for family, sailing, skiing, and golf.

He was appointed to the Ontario Court (General Division) in 1992 and assigned two murder trials before he was sworn in.

The RSJ has three jobs: (1) sitting as a Superior Court Judge; (2) running the Judicial Region, which includes setting the yearly schedule assigning judges to the eight judicial centres in Central South; and (3) being a part of the Council of Regional Senior Judges who advise the Chief Justice of the Trial Court on issues of Court administration. Outside of the courthouse, Justice Glithero spends time with his wife, children and, now, grandchildren. As for golf, that last beautiful 150 yard shot straight at the green (after a series of duffs) keeps him at the game. His boat is now power, not sail. He satisfies his creative side by woodworking.

RSJ Glithero still loves the courtroom, the law of evidence, and murder trials. He also enjoys writing and working to improve the administration of justice in the Province, Region, and City of Hamilton. And, in all his years on the Bench, he has never sentenced a murderer to be hanged.

It was the gallows that goaded Justice Glithero to the law.

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Book Review

The Law of Electronic Discovery New Book Unplugs Cyperspace David Outerbridge Electronic Documents: Records Management, e-Discovery and Trial is an excellent book. Released in early 2010 by Canada Law Book, this 500+ page, loose-leaf text is almost certain to become the leading Canadian reference source for lawyers and litigants regarding electronic documents and the law of electronic discovery. The book is a sophisticated, interesting and comprehensive treatment of current Canadian law and best practices in this rapidly developing area.

Electronic Documents is a multi-author work written by 10 Toronto litigators and commercial lawyers, and edited by three litigation partners at Weir Foulds LLP: Bryan Finlay, MarieAndrée Vermette and Michael Statham. Notwithstanding the multiple contributors, the book reads as a single, well-synthesized volume, with helpful cross-references throughout.

One of the most refreshing features of Electronic Documents is its thoughtful consideration of the place of ediscovery within its wider legal and historical context. The book’s authors recognize that the present “e-discovery moment” is simply one stage (an important stage) in the long and ongoing evolution of civil procedure in Canada, and globally. As the authors explain in the opening pages, the book draws on “experience and history, precedent and legislation, and market and social forces to understand how the combination of these factors has resulted in what [Oliver Wendell] Holmes would have termed a ‘new product’” in the form of e-discovery. The authors advocate a pragmatic and optimistic approach to electronic documents – accepting the reality and tackling the challenges of electronic records management and e-discovery, while also appreciating their benefits and subtleties. Electronic Documents is organized into seven chapters, consisting of an introductory theoretical overview, followed by six lengthy substantive chapters that explain and analyze all phases of the life cycle of electronically stored information in connection with litigation.

Chapter two provides a very good and very detailed explanation, in terms that are easily understood by lawyers, of the technology of electronic documents. This chapter covers the nature of electronically stored information, legal definitions of an electronic “document”, the manner in which electronic data are stored on computers, the different types of storage media, and the basic functioning of the Internet. Chapter 3 reviews the importance of an effective records management policy and the links between such policies and litigation risk management.

Chapter four is a detailed review of the legal framework that currently governs e-discovery in Canada. This chapter covers not only applicable Rules of Civil Procedure (including

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recent changes to those rules in several provinces), but also the leading e-discovery guidelines in both Canada and the United States (i.e., the Sedona Principles in the U.S., and the Sedona Canada Principles and the Ontario Guidelines in Canada), and the leading case law in both jurisdictions. The book’s reasonably detailed review and comparison of U.S. and Canadian e-discovery law in this and subsequent chapters is a welcome feature. Chapters five - seven explain with greater particularity the e-discovery law and best practices governing specific stages of the civil litigation process. Chapter five covers the preservation and collection of electronically stored information, fo-

“Intelligent, thorough and useful book”

cusing on the key issues of litigation holds, spoliation of evidence, and ensuring compliance with e-discovery obligations by opposing parties. Chapter six addresses the processing and review of electronic documents, exploring the different techniques that a party may wish to use in order to minimize e-discovery costs and time, while maximizing effectiveness in locating relevant documents. This chapter also reviews available software options for culling irrelevant documents through innovative search techniques that can significantly reduce the need for review of individual documents by lawyers. Finally, Chapter seven explores the requirements for producing electronic documents, ensuring their admissibility, and conducting an e-trial. Electronic Documents is an intelligent, thorough and useful book. Its pages address, in one form or another, all of the issues that a litigator or litigant requires in a text on this topic: the law and the technology, records management and ediscovery, Canadian and U.S. perspectives, the rules and the best practices, all reviewed from both a theoretical and practical perspective. The book’s authors have succeeded in providing their Canadian legal audience with what will be widely viewed as the pre-eminent book of its kind in this country. David Outerbridge is Counsel in the litigation department at Torys LLP in Toronto, and is Chair of the Ontario E-discovery Implementation Committee

more on the E-Revolution, see pages 32, 33

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“Before, during, and after litigation, practitioners and clients will need the information, advice, and recommendations found in this book. (It) provides not only a report on the past and the present of E-Discovery but also analytical tools or building blocks for solutions in the future. This is a very useful text, and I commend it to its readers.” Justice Paul M. Perell Ontario Superior Court of Justice

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6/1/10 3:20:56 PM

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August 2010 | Briefly Speaking â&#x20AC;˘ En Bref

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The Ontario Bar Association Congratulates the June 2010

Calls to the Bar

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Lindsay Sandra Aagaard Anna Helen Abbott Lisa Lynn Abbott Marina Abrosimov Tasha Désirée Adams Abiola Olaide Adeusi Thomas William Agnew Keshav Rai Agnihotri Syed Ali Ahmed Randy Ai Shubir Aikat Shelby Anne Aikman Yetenayet Ashleigh Pauline Akalehiywot Raffi Akelian Mae Antoinette Alampay Pierre Gilles Alary Joshua Burgess Alcock Bradley Jason Alexander Sheena Lynn Alexander Orit Aliasi-Sini Douglas Fajardo Alinea Ronald Allan Danielle Elizabeth Holmes Allen Carey Alena Allen Frances Serafina Allen Mariam Salam Al-Shikarchy Elliott Ambridge Lamberto Ambrosini Gahiz Amini Vanessa Henrietta Amyot Matthew James Anderson Andronikh Andreakos Colin David Andrews Paul Gordon Andrews Kurtis Rae Andrews Mwenge Louise Anzuluni Diana Aoun Alisa Catharine Apostle Israel Apter Richard James Coelho Arezes Madeleine Abelle Arsenault Cooper Courtney Elizabeth Ashton Jennifer Asnani Emily Catherine Assini Erin Joycelyn Atkinson Naghmeh Attaran Jamie Hui-Ching Au Paul Andrew Aubin Daniel Robert Auron Vanessa Louise Bacher Diana Nancy Feldthusen Backhouse Jessica Maria Bacopulos Gurpreet Singh Badwal Rosedeep Kaur Bains James Lawrence Baird Sonali Dilrukshie Bakelmun Stefanie Ann Baldassarra Subhi Barakat Kelly Ann Barker Robert Charles Stephen Barrass Michael Bryan Andrew Barrett Osleen Kameika Barrington Kristin Marie Barsoum John Glen Bassindale Eric Samuel Baum Sherri Jane Beattie Adam John Beatty Andrew Paul Thomas Beck Julie-Ann Helen Bedford Douglas Michael Beeforth Spyros Bekiaris John Andrew Belecky Jeffery Ian Beleskey Jérémie Nessim Benchitrit Romany Kyrin Benham-Parker Tina-Marie Elizabeth Benson Rachel Elyse Bernstein Danny Bernstein Laura Clare Andrea Best Erin Elizabeth Lyle Betts Talar Anoush Beylerian Natalia Beznosova Charu Shikha Bhandari

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James Andrew Sawyer Binkley Rivka Leah Birkan Elisa Birnbaum Pamela Opal Biron Pierre René Bisbicis Damion Lloyd Blair Ilana Marie Bleichert Stacey Alana Simmie Blidner Erin Michelle Bobkin Lambert Boenders Randall Mark Boessenkool Lilia Bogomilsky Saadia Ali Bokhari Jennifer Tanya Bond Michael Geoffrey Bond Kimberley Elizabeth Bonnar Jaimie Michael Bordman Karen Jill Borovay Jean Pierre Bernard Bouchard David Jonathan Bouda Sara Mary Tsering Boule-Perroni Marie Sylvie Denyse Boulet Andrew Richard Bourns Gregory Freeman Wayne Bowley Stephanie Anne Boydell John Robert Bradbury Andrea Mary Clark Bradley Stephanie Marie Brady Margaret Catherine Bramhill Sarah Marie Bratanek Amanda Elizabeth Brennan Patrick William Brennan Joseph Peter Philippe Bresee Robert Lawson Brews Kira Brezhneva Alyssa Michelle Brierley Kate Diane Mary Brindley Brian David Brody Ellen Ann Brohm Tracy Coralee Brown Stephanie Claire Guglielmin Brown Susan Sheila Brown Jody Nicholas Brown Ashley Brooke Brown Michael Thomas Brown Nicolas André Brunette-D’Souza Joanna Toshiko Bryan Paul Edward Bryant Anna Maria Brylewski Shira Rachel Brym Vishal Budhwa Elliot John Burger Kyle David Burgis Lesley Evelyn Burke Jonathan Burshtein Barbara Eleanor Burton Sarah Jane Buski James Anthony Butlin Ernesto Vladimir Caceres Sahar Cadili Ryan David Caesar Samantha Elizabeth Cain Erin Marie Callery Heather Margaret Mac Donald Cameron Diarmid Alexander Campbell Alfonso Ernesto Campos Reales Paul James Carbonelli Bruce Carlini Andrew Richard Carlson Rosanna Sevilla Carreon Sean Andrew Carrie Rosario Guadalupe Cartagena Jacob Ralph Samuel Cawker Alexandre Ronald Joseph Caza Antonio Cerasa Genevive Chabot Ada Ho-Ying Chan Alan Douglas Chan Cheong-Yip Chan Chi Pui Pearl Chan Lorraine Mary Chan Sara Wei-Ming Chan Wynnie Minne Chan

Emmanuel Justin Chan Pradeep Chandrashekhar Colin McGregor Chant Blake Austin Chapman Christian Fan Cheong Christopher Michael Cheung Chrystelle Marie Patricia ChevalierGagnon Abba Emmanuel Chima Stephanie Elizabeth Chipeur Mandeep Chohan Nai Vin Janet Chong Andrew Yee Chung Chong Maryse Suzanne Béatrice Choquette Urmi Chowdhury Kristine Anne Barroma Chua Chun Hiu Chung Sarah Churchill-Joly Lisa Anne Chuyow Myroslav Theodore Chwaluk Christopher Douglas Clemmer Chelsea Lynette Clogg Charissa Esther Cobbler Shelia Annette Cockburn Amanda Marie Coen Caitlin Marissa Cohen Joseph Alexander Cohen-Lyons Andrea Alana Cole Miranda Lydia Cole Chabriol Annett Colebatch Angela Marina Coleman Tyler John Richard Coleman John Michael Collins Erin Delia Collins Grace Michelle Colonnese Torres Lauren Michelle Conti Karinne Avery Coombes Steven Joseph Coons Simon Theodore Cott Alain Robert Cousineau Stephanie Fleur Couzin Daniel Clifford Francis Cowper Gordon Geoffrey Cowper-Smith Tracy June Cox Sarah Francesca Cressatti Alana Anna Crugnale Clare Barbara Crummey Jason Phillip Currie Serena Constance Curry Robert Gordon Curtis Steven John Cutler Richard Joseph Da Costa Lauri-Ann Daitchman Darrell Roy Joseph Daley Sumeet S. Dang Rano Adel Kamal Daoud Shaffin Abdulsultan Datoo David Hadi Davachi Kristina Arlene Davies Jaron Yale Davis Keri Edrica Davis Benjamin John Peter Dawkins Christopher Richard Dawson Laura Melissa Day Sandra De Carolis Sarah Nicole De Filippis Natalie Dionne De Haney-Stewart Michael Charles De Santis Dan Dedic Brett Raymond Degoldi Adam Campbell Ghislain Delva Jeremy Robert DeMan Sarah Deol Jessica Lee Derynck Caroline Irene Descours Kristina Andrea Desimini Julie Marie Anne Desmarais Brandon Glenn Desmoulin David Martin Deutsch Prevain Ramesh Devendran Patrick Matthew Déziel Salim Dharssi Jessica Marie Di Federico

Michele Stefano Di Rienzo Emeka Michael Dibua Yaroslav Orest Diduch Dana Lyn Dingman Kristopher Lee Dixon Marko Djukic Kelly Docherty Marie France Dompierre Diana Dongak-Lee Heela Donsky Conor Joseph Dooley Marie Céline Claire Dostaler Danielle Anita Douek Nolan Robert Downer Kevin Edward Howard Doyle Justin Christopher Bishop Drake Dawn Margaret Helen Drayton Stéphanie Rachelle Drisdelle Andrea Marie D’Silva Shane Cyril D’Souza Arati Dubey Teresa Dawn DuBois Michael Duffy Matthew Marc Joseph Dugas François Georges Dulude Keely Teresa Duncan Jeremy Simon Dunn Kelly Alexandra Dunn Stacey Margaret Duong Steve André Serge Duplain Maria Durdan Genevieve Durigon Rainer Béla Duschinsky Elizabeth Susanna Earon Mark Aaron Edelstein Yodit Edemariam Prathiraja Dhar Edirisingha Arachchi Anitha Nadine Edirmanasinghe Raphael Tony Eghan Modupe Olubukola Egunjobi Jessica Nichol Eisen Jacquie El-Chammas Gail Ellen Elman Lea Epstein Kathryn Ann Esaw Peter Andreas Eschlboeck Matthew Simon Estabrooks Sergiel Philip Ettinger Alicia Marie Evers Ogbitse Ezomo Christian Bernard Farahat Kimberley Marie Farris Luke Stanley Faught Teresa Colleen Feehan Michelle Angela Fernandez Liliana Sofia Nobre Ferreira Steven Christopher Ferri Carla Figliomeni Isaac Zemede Filate Rami Filfil Alexandra Joanne Findlay Alison Joanna Fingas Jessica Davida Fingerhut Harley Michael Finkelstein Michael John Fisher Jan-Marie Margaret Fisher Gabriel Joseph Flatt Ian Leo Grover Flett Marc Aaron Flisfeder David Sean Fogel Ho Ching Fok Barry Fong Christine Marietta Fortino Jérmie Joseph Roméo Fournier Melanie Irene Francis Steven Gedalia Frankel Andrew Evan Franklin Kenneth Bradley Fraser Leslie Anne Frattolin Adam Ryan Freedman Kelli Jean Frew Solomon Chaim Friedman Michelle Rene Frigon

August 2010 | Briefly Speaking • En Bref

9/17/2010 12:56:34 PM

Matthew Donald Furrow Elad Gafni Nickos Galanis Amy Marie Galbraith Jennifer Lauren McCulloch Gamble Romona Sashileaka Gananathan Amaan Gangji Tian Shuang Gao Matthew Franklin Gardner David Peter Gardos Meryl Zisman Gary Marc-André Gauthier Marie-Sophie Gauthier Filip Gavanski John Clarence Gayle Philippa Frances Geddie Matthew James Geigen-Miller Mark Jonathan Gelfand Raymond John David Gemmill Ellad Hanan Gersh Patrick Haley Gervais Gelareh Ghasemi Roberto Domenico Carlo Ghignone Matthew Adam Giesinger Lesley Lang Gilchrist Michael Edward Giordano Christopher Luigi Girardo Fred Gjoka Vanessa May Marie Glasser Laura Marie Glithero Winsome Blythe Glover Steven Arie Glowinsky Shaun Neil Gluckman Robert Adam Gold Lori Dana Goldberg Russell Joseph Goldenberg David Adam Goluboff Shane Stanislaus Gonsalves Neida Gonzalez Stephanie Ruth Goodall Ryan Noah Goodman Alexander Murray Gorka Carisa Grace Gorrell Andrea Josefa Gorys Brian Gottheil Fraser Robert Gow Girish Kumar Goyal Raul Frederick Goyo Shields Matthew Paterson Grace Moya Jane Graham Mark Duncan Stephenson Graham Andrew William Graham Catherine Louise Grainger Dani Rachel Jeanne Grandmaître Laura Frances Grant John Anatole Albert Gravel Brendan Thomas Gray Brian Robert Gray James Richard Alexander Green Jordan Shael Green Jamie David Greenberg Jay Teddy Greenspoon Harriet Joanna Greenwood Mary Virginia Jaclyn Greer Susanne Ulrike Helga Greisbach Rajveer Kaur Grewal Allison Elaine Grimsey Corey Groper Amanda Lee Groves Kris Gurprasad Adam Alexander Gutkin Bernd Franco Orazio Hahn Mohammad Hadi Hakimi Brian Thomas Hall Adam Benjamin Haller David Ashley Halliwill Zvi Joseph Halpern-Shavim Nathalie Zeina Hamam Dalia Hamdy Michael Henry Hamilton Joelle Margaret Hamilton Hugh Robert Hammond Juliana Han

Lisa Marie Handfield Jennifer Marie Hansen Harpreet Hansra Viktor Sinisha Haramina Natalie Ivanka Cassandra Haras Sam Hariri Joshua Louis Harnett Jason Leo Harrington Emily Anne Harris Deanna Patricia Harris Sarah Elizabeth Harrison Cale Andrew Harrison Aaron Kamin Hart Mohamed Raphick Hashim Jr Kirryn Grace Hussain Hashmi Jesse Tyler Elliot Hawkins Emma Maureen Haydon Rebecca Rose Hayes Patrick Anthony Acheson Hayes Joel Hechter Jonathan Edward Heeney Andreas Chun-Hao Heiden Bradley Lawrence Hemeryck Alika Denise Hendricks Michael Joseph Philippe Henley Lawson Harris Hennick Lesley Croll Henry James David Henry Hazel Adelle Herrington Sara Marie Hickey Lisa Dawn Hilborn Matthew David Mintz Himel David Harris Himmel Mark John Charles Hines Julian Chi Sheung Ho Sasha Bayla Rivka Hochman Laura Frances Hodgins Jennifer Efrat Gytha Hoffman Jessica Ida Hogeveen Daniel Travis Holden Jennifer Lauren Hood Ryan Christopher Hornby Damian Nicholas Hornich Tobin Brooks Horton Kathryn Alison Houlden Adrian John Howard Bethany Marie Howell Andrew David Howse Amy Yu-Chieh Hu Matthew Colin James Hunt Christopher John Hunter Karen Denise Hurley Inho Hwang Marlon Germaine Hylton Vickie Lynn Iacobellis Colleen Alexandra Iascone Jordan Armand Ingster Anastasia Alexis Iordanis Katie Anne Ireton Diana Isaac Robert Michael Jackson Michelle Octavia Jackson Natalie Jacyk Balkees Jarrah Hilary Eades Jarvis Michael Iwan Jemczyk Kenneth Anthony Jennings Laura Rachel Johnson Michael Andrew Johnston Abraham Jonas Sarah Lindsay Jones Scott Leslie Fordham Jones Anthony Donald Jones Shelley Ann Jones Stephanie Esther Jones Richard Martin Jordan Subhash Joshi Brian Joseph Julien Bakaji Kabongo Devinder Kumar Kadian Siham Kadri Arafat Gerjon Kalaci Lindsay Lauren Kantor

Briefly Speaking • En Bref | August 2010

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Aquilas Kapend Devi Kapoor Armen Karapetyan Robert Bruce Karn Guy Kartuz Gdalia-Gad Katz Tavlin Kaur Bahareh Kazemi Jocelyn Catherine Kearney Neil James Keating Patrick Mason May Kee William David Sanderson Keele Marcy Kathryne Edith Keens Lauren Holly Kehoe John David Keith Marta Keller Sean Broderick Kelly Jennifer Maureen Marie Kelly Michelle Lynn Kelly Lindsay Sara Kenalty Alexey Bakhyt Kenjeev Patricia Mary Kennedy Julia Marie Williams Kennedy Ryan William Kennedy Leanne Elizabeth Kenning Mahan Keramati Robin Dylan Kerr Nihan Keser Jonathan Moses Keslassy Mahnaz Mana Khami Lazina Khan Sachin Ryan Kharbanda Ravital Khardas Yomna Khatib Radha Khosla Alla Kikinova Min Kook Kim Dong Uk Kim Amy Lynn King Alexandra Eileen Kington Nancy Marguerite Kirby Jordan Arthur Kirkness Kyle Jordan Kirkup Ryan Michael Kirvan Ian Jason Klaiman Philip George Klassen Jonathan Louis Kleiman Melissa Leah Klein Cassandra Alexis Kleinman Alex Kluchuk Arin Lionel Klug Jamie Catherine Kneen Randy Frederick Knight Brian John Knowler Anita Kocula Kah Foo Koh Adam Alexander Kope Aaron Benjamin Korman Hyla Tova Korn Suzanne Elizabeth Kotzer Sharon Ann Kour Nicholas Koutsoukis Andrew Paul Kovarcsik Adam Layton John Kowalsky Joanna Dorota Kozakiewicz Evgeny Kozlov Christopher Derek Andrew Kozub David Maxwell Kramer Lindsay Denise Krauss Bal Krishna Anjali Krishnamurthy Stephanie Fay Krol Sachin Kumar Sabrina Kumar Thomas William Cranford Kurys Lukasz Kuzio Antia Long Ying Kwan Sébastien Jean Kwidzinski Christine Marcia La Fleur Lauren Elizabeth Lackie Nadia Laeeque John Richard Laffin Cheuk Ting Lai

Kindra Lee Lakusta Arran Lal Karen Lam Joshua Yong-Doa So Lam Kevin Lam Denelle Monique Marie Lambert Matthew John Lambert Dara Marie Lambie Connie Lyn Lamble Alexie Sarah Landry Johnathan Lloyd Landry Genevive Andrée Langlais Jonathan Farrell Laski Mark David Lau Matthew Chi Heng Lau Shannon Aileen Lavell Melina Falan Laverty Pierre Joseph Denis Bernard Lavoie Adam Michael Lazier Stephanie Ann Lazor Jane Maria Le David Lowndes Le Drew James Gerald Lea Rachel Catherine Leck Matthew Patrick Ledger Cindy Lee Eun Shil Lee Rebecca Anne Lee Brenda Lee Mee Hwa Lee Adeline Yee Lee Tracey Teresa Ka-Toi Lee Michael William Lees Bruce Christopher Lee-Shanok Liam Neil Simon Legate Olivier Alcide Léger Adrienne Chi-Yan Lei Robert Lewis Leibel Charmian Leong Kathleen Margaret Leslie Jane Elizabeth Letton Geoffrey Chi Fai Leung Hui-Ying Grace Leung Adria Wai- Lan Leung Ka Wai Leung Robert John Peter Levan Miriam Leah Levin Xiaole Li Charlene Marie Lipchen Queenie Kwan Luen Lo Andrew Ming Che Loh Sarah Emily Lodi Janaarthany Logananthan Alexandra Logvin Jennifer Marie Lohuis Anna Melissa Viga Loizou Jesse Derrick William Long Melissa Ann Loucks Charetina Esther Jeva Lougheed Roger Alexander Love Mark Edward Loya Peter Gordon Luciano Bowie Lui Vivian Sze-Mun Lui Jeffrey Andrew Lulham Cory James Frederick Lynch Brian Patrick Mac Donald Andrew Michael Mac Isaac Jennifer Lauren Chang Mac Lean Michael Ignatius Mac Lellan Kate Mairi Mac Leod Daniel Scott Macdonald Matthew Joseph Macdonald Lori Jean MacDonald Lisa Ann MacDonnell Megan Ashley MacDougall Elaine Judith Mackay Thomas Jack Macmillan Josiah Thomas MacQuarrie Poonam Madan Paljinder Singh Mahaar Bernadette Shiamala Maheandiran Matthew Christopher Mahoney

9/17/2010 12:56:34 PM

Melanie Do Carmo Maia Aila Makooli Zohaib Iqbal Maladwala Nilanka Dananjee Maldeniya Pavel Malysheuski Krystal Lee Manitius Amritpal Singh Mann Jasmeen Mann Nicole Lee Mantini Anthony Carmine Marchetti Benjamin Ryan Vicente Marcos Sharon Marcushamer Samuel James Marino Erika Bayle Marks Geoffrey Victor Marr Thomas Albert David Julian Marshall Allyson Jane Marta Andrew Gordon Flavelle Martin Bronwyn Maria Martin Maija Christina Martin Abigail Castillo Martinez Shalom Mathalone Sherri Esther Matta Kevin John Andrew Matte Renée Jacqueline Matthews Katelyn Elizabeth Matthews Jennifer Theresa Elizabeth Lynn Matunin-Brown Dina Lee Maxwell Christopher Matthew Mayer Eric Alan Mayzel Margaret Alysha Mc Coll Lisanne Jaimi Mc Cullough Paul Andrew Elliot Mc Cutcheon Michael William Mc Donald Anne Marie Mc Elroy Daniel Julian Mc Gruder Dalton James Patrick Mc Guinty Gordon Arthur Mc Guire Michael Paul Mc Isaac Heather Anne Mavis Mc Ivor Andrew Charles Mc Kague Christopher Sean Mc Kenna Amanda Christine Mc Lachlan Megan Elizabeth Mc Leese Benjamin George Mc Nabb Kelly Anne Mc Tavish Tara Diane McCabe Rex Jerome McCafferty Richard Thomas McCluskey Stephen Barry McCotter Bridget Ellen Lemieux McIlveen Kendall Ryan McLaughlin Douglas Hugh McLeod Johanna McNulty Jennifer J Meader Mordechai Moshe Mednick Golbon Mehrabkhani Genevieve Suzanne Meisenheimer Dean Henry Melamed Alan Melamud Nicole Michelle Melanson Jason Andrew Meloche Ameer Ali Mian Jennifer Micallef Francesco Luigi Miceli Emma-Christina Michael Michael Gordon John Miculinic Andrew David Midwood Anita Anne Mielewczyk Cathi Leigh Mietkiewicz David Jonathan Mifsud Balqees Ali Mihirig Erin Marie Miller Thomas Miller Melissa Elizabeth Miller-Hall Owen Duncan Minns Ingrid Allison Minott Jennifer Gail Minuk Ilana Lauren Mizel Andrew Alan Moeser Allan Rasheed Mohammed Steven Richard Molnar

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Aline Monachakanian-Avanessy Francesca Monardo Eli Simon Monas Brian Isaac Monteiro Dwight Robert Lee Montgomery Brett James Moodie Sarah Louise Moore Oliver Elliott Vinh-Quang Moore Philton Moore John Noel Berido Morala Carey Lynne Morgan Melissa Morra Anne Gilchrist Danna Morrison Jennifer Lynn Morrison Suzette Ann Moss Michael William Moss Charles Anthony Mota Nadia Mourawed Christine Patricia Muir Nila Rena Mulpuru David Craig Munday Yusra Mirwat Murad Kiernan Alexander Murphy Laura Audrey Anne Murray Charles Patrick Ross Murray Mark Edward Muszynski Richard Bedad Mwangi Vasundhara Naik Ankur Narula Joseph Michael Natale Jay Andrew Hall Nathwani Anthony Prakash Navaneelan Dino Christopher Nave Erin Marjorie Naylor Nafisa Nazarali Erin Maria Neal Stephanie Jane Neate Susan Margaret Newell Mareike Noona Godbout Newhouse Kristen Dawn Newman Kenneth Ka Chun Ng Warren Ting-Yan Ng Beatrice Tchedam Ngatcha Diem Ngoc Dao Nguyen Huy Thai Hoa Nguyen Emilie Nicholas Peter Douglas Nicholson Chelsea Lynne Nickles Nasha Nijhawan Gurmohan Kaur Nijjar Martina Nikolic Mandana Nikoui Kamsari Chika Nwego Nnoli Edward Patrick Abraham Nolan Khiamkham Nong Sara Novell Lidiya Nychyk Christopher Wilson Oates Romy Ochmann St-Jean Sean Joseph O’Donnell Aaron Peron Ogletree Steven Oh Erin Jane O’Hara Amy Jacqueline Ohler Katherine Selena Oja Leanna Elisabeth Dejneka Olson Christopher Fisola Olutola Stacey Dawn O’Neill Barbara Opalinski Jeremiah Brandon O’Riordan Zahar Orlov Edward Makmot Otto Stephanie Manon Ouellette Daniela Mota Pacheco Sarah Melissa Paddon James Paul Page Adam Angelo Carmine Paglione Brian Ka-Wai Pak Jennnifer Palmer Jordan Bronte Robertson Palmer Odysseas Papadimitriou Andrew Papadimitropoulos Julie Sophie Paquette

Martin Park Cenobar Pasdar Parker Paul Gordon Parker Kevin Alexander Parker Sarah Catherine Partridge Seemal Sanand Patel Kiran Andre Patel Jessica Jean Patton David Randall Peaker Antun Martin Peakovic Christian Kenneth Pearce Farrell Alana Pearson Julian Brandon Peikes Roman Michael Yaroslaw Pekaruk Andrew Daniel Maclaren Pelletier Michael Alexander Peppin Perlin Ekaterina Permiakova Marni Danielle Pernica David Joseph Louis Perri Christopher Daniel Perri Natalie Michelle Perryman Benjamin Neil Perryman Eleonora Persichilli Erin Courtney Petch Melanie Amber Peters Victoria Melinda Petherbridge Jason David Peyman Amelia Phillips-Lewis Holly Lynn Phoenix Robert Steven Piccolo John Michael Picone Anna Nicole Piekarski Maciej Ryszard Piekosz Honora Alexandra Pietrzak Christopher Donald Pigott Danya Richaelle Pilat Adrianna Monique Pilkington Mark Leon Pioro Benjamin Paul Toupin Piper Joanna Lise Pitkin Danielle Elaine Poirier Rebecca Ronit Politzer Weston James Pollard Kathleen Dianne Poole Ugljesa Popadic Philip John Pothen Craig Jordan Potter Julian Clifford Powell Craig Donald Power Ryan Michael Prendergast Ryan Matthew Prescott Joseph Eric Luc Gilles Presseau Francine Jodie Prevost Kathleen Anne Marie Price Jodie-Lee Jacqueline Primeau Gordon Alexander Prisco Karen Elizabeth Pritchard Vincent-Joel Proulx Serge Alexandre Proulx Kaley May Pulfer Natasa Puskar Jason Aaron Puterman Stephanie Rosaleen Quesnelle Paul Robert Quick Valérie Emmanuelle Quintal Julie Kathryn Anne Quirt Marty Rabinovitch Mark Alexander Radulescu Judith Florence Rae Natalie Anne Keleher Raffoul Kajori Monika Rahman Emily Susan Sellar Rahn Richard Cameron Rahnema Jay Raj Rajagopalan Tricia Marian Ralph Azmat Raj Kumar Ramal-Shah Gursharnjit Singh Randhawa Tariq Rangwala Alexandra Sarra Raponi Mohammed Baqa Rashdi Lindsay Elizabeth Rauccio Nivedita Ravi Ilana Tova Raynai

Jesse Mikhael Razaqpur Marc Ashley Trueman Reardon Heather Moffatt Reardon Alison Mackenzie Rehner Robert John Reid Melissa Rebecca Reiter Katrina M. Reyes Brett William E. Reynolds Samantha Reynolds Jonathane Michael Ricci Joseph Wesley Richards II Robert Richardson Benjamin Carter Ries Diane Marie Rioux Slavko Ristich Kenneth Tyler Ritson Jonathan Trevor Robart Taylor Bruce Robertson Leslie Anne Robertson Cheryl Anne Robinson Tara Lynn Robinson Shannon Lyn Robinson Tanya Rocca Stéphanie Marie Line Rochon Ifigenia Rodopoulos Blair Louis Roedding Sharon Ann Rohoman Claudio Rafael Rojas-Hurtado Henry Michael Gilmour Rosenberg Alia Carmel Rosenstock Malina Ariana Roshan Rebecca Faye Ross James Martin Ross Carloalberto Stanislaw Ugo Rossi Patrick Mark Roszell Andrew Jacob Roth Sylvain Roger Rouleau Nastaran Roushan Thomas Brian Caerhayes Rowe Allyson Lindsay Roy Yonatan Rozenszajn Anthony Michael Ruffolo Calogero Andaloro Rumeo Jessica Lee Ryan Katherine Anna Rydel Grace-Emily Saati Sharon Gail Sabourin Sidra Fakiha Sabzwari Brennan Micah Sacevich Eric Fraser Sadvari Justin Arash Safayeni Alexandra Nicole Saginur Nicholas Andre Saint-Martin Ryan Todd Sakamoto Maureen Joseph Guirguis Salama Joseph Zvi Salmon Vivene Ann Salmon Frances Kathleen Lahey Salter Jennifer Leigh Sander Gagandeep Kaur Sangha Naaila Sangrar Katharine Emma Sangster-Poole Christopher Stephen Sansom Ajit Singh Saroha Bartosz Sarsh Matthew Thomas Savely Lukasz Sawicki James Patrick Sayce Catherine Mary Schaefer Charlene Elizabeth Schafer Emily Ann Schatzker Joshua David Scheinert Jack Michael Schiff Jason Anthony Schmidt Ilana Claire Schrager Deandra Lisa Schubert Megan Melinda Schwartzentruber Jennifer Ann Schwass Gianfranco Scipione Jordan David Scopa Conrad Delbert Seaman Erica Marie See Noam Sela

August 2010 | Briefly Speaking • En Bref

9/17/2010 12:56:35 PM

Natalie Lisa Senst Michael Simon Sestito Emma Elizabeth Mitchell Seth Stephen Peter Shaddock Cathrine Shandler Neil Shapiro Paul Sharp Warda Shazadi Amanda Vivian Sheane Bruce Stephen Sheiner Alana Victoria Shepherd Rebecca Rose Shepherd Daniel Noah Sheppard Laura Faith Shiner Robert James Shirkey Nisha Shivji Nicholas Alexander Shkordoff Diana Olegovna Shligold Steven Gregory Shoemaker Sheila Shoghian Matthew Evan Shogilev Jennifer Courtney Shupak Serena K. Sial Kalvin Sie Arin Jonathan Silber Sharon Beth Silbert Alina Silvestrovici Paun Marie Marie-Andree Stephanie Simard Clare Simmonds Amy Patricia Simmons Stephen Africanus Jerimiah Gwaliamba Simpson Choi Kit Sin Sabrina Singh Kernjit Singh Stacey Lee Siopis Leonid Sirota Mor Sitelbah Andrea Joan Campin Skinner Katherine Anne Skinner Nozomi Smith Robert Leslie Desmond Smith Jordan Maurice Smith Philip Jacob George Smith Rene Antoinette Smith Scott Andrew Smith Jonathan Dov Smith Kara Lee Smith Brooke Frances Marie Smith Stephanie Christina Anne Smith Anthony Christopher Smits Chloe Alexandra Snider Geoffrey John Frederick Snow Heather Diana Socken Ju Ho Song Gopesh Jayantil Soni Gary Alexander Sonik Jason Michael Sonshine Daniel Malcolm Sosna Scott Jordan Southward Amy Catherine Spady Lindsay Elizabeth Speed Evelyn Julia Spence Heather Frances Spence Andrew Michael Spencer Jeffrey Michael Spiegel Mairi Leigh Margaret Springate Heather Sarah Squires Christopher Stankiewicz Nicholas Joseph Staubitz Amy Reesa Stein Brett Ashley Stephenson Daniel-Carol Sterescu Daniel Jonas Stern Aba Nneka Stevens Karen Anne Steward Adam James Stewart Jane Elizabeth Stewart Sarah Katharine Lee Stiner Charles Benjamin Stitz Andrea Lynn Stoddart Christine Helen Stojanov Thomas Francis Stollman

Danielle Dawn Stone Juliana Blythe Stone Krista Jennifer Stout Kalin Ivanov Stoykov Jonathan Dwight Strong James Christopher Studer Sarah Sabrina Subhan Shenthuran Subramaniam Ivana Sudzum Anastasia Danielle Sukalsky Martha Mary O’Heron Sullivan Zhendong Sun Michael Chen Ng See Yan Suria Anna Suslik Joshua David Sutherland Jayda Anne Sutton Erin Kathleen Sweeney Michael David Swindley Robyn Cecile Switzer Slawomir Szlapczynski Rafal Szymanski Raphael Tachie Sumrana Mahjabe Taher Francesco Giuseppe Antonio Tallarico Keith Harrison Taller Jordana Zahava Talsky Amit Talwar Paulina Valenti Taneva-Parashkevova Jennifer Paige Tang Louise Michelle Tansey Reed Warren Taubner Stefano Filippo Taucer Rebecca Anne Taylor David Vincent Taylor Steven Michael Teal Andrew Michael Teehan Lynn Marie Tegosh Nafisa Alnashir Tejani Liwam Tekle Moya Teklu Candice Nicole Telfer Lucas Eric Thacker Tharani Tharmalingam Christian William Linton Thatcher Rejean David Theriault Jody Therriault Ryan Joel Therrien Stephanie Elizabeth Thibideau Byron Matthew Thom Ariel Alison Thomas Brendan Mitchell Thomas Joyce Michelle Dinese Thomas Meaghan Shea Thomas Andrew Alexander Kerr Thompson Matthew David Thompson Sybil Sakley Thompson Christopher James Thompson Joseph James Thorne Richelle Margaret Thorne Tamara Lorraine Ticoll Kevin Gordon Tilley Riaz Timol Ashley Rigel Rothwell Tinney-Fischer Jonathan Samuel Tkatch Jonathan Wai-Hung Tong Alyson Kristina Carole Toop Mark Douglas Tozer Aaron David Trager Robert Michael Trager Sandra Leigh Train Cormac Laurence Trainor Ryan Todd Tremblay Derek Ross Truelove Bianca Kar-Yan Tse Diana Tseng Jason Michael Tsoukas Hoi Yan Tiffany Tsun Lanny Steven Tuchmayer Laurie Michelle Turner Sarah Jane Turney Nicola Ty Marshall Drew Hammond Tyler Babak Vakili

Briefly Speaking • En Bref | August 2010

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Carley Ann Valente Leemor Valin Krristen Marie Van Alphen Marion Grace Van de Wetering Lynn Burbidge van der Valk Sean Gordon Van Helden Lindsay van Roosendaal Dennis Owen Van Sickle Mark Joseph Van Zandvoort Kimberley Joyce Vanderlee Jacqueline Denise VanDerMeulen Freda Vanopoulos Jennifer Patricia Jane Varcoe Paul-Erik Nicholas Veel Patrick Joseph Georges Vermette Micah Ira Vernon Peter Alan Verschoote Anny Vexler Paula Nicole Viola Saba Khalil Abbas Viraney Adrian Benjamin Visheau Vanessa Yvonne Voakes Trish Michelle Vrotsos Megan Ann Vuksic Lina Umeshchandra Vyas Justine Virginia Ka Weng Wai Clarisa Denise Waldman Daniel Robert Michel Waldman Christine Maria Waldner Sharon Nkeiruka Walker Andrew Luke Walker Bobbi Ann Wallace Julia Christine Wallace Megan Dawn Wallace Stephen Ashley Walsh Jordan Samuel Waltman Yaqian Wang Ellen Marie Wankiewicz Lori Ann Marie Wanlin Cheryl Annette Waram Kyle Alexander Wasko Katherine Zoë Waterston Timothy John Watson Geoffrey Norman Watt Rowan Elizabeth Weaver Heather Nora Webb Evan Andrew Weber Cameron Patrick Weir Alyssa Nicole Westlake Valerie Marguerite Joan Westwick Scott Alan Haynes Whitelaw Dale Edward Whitmore Daniel Justin Whittal Blayne Cary Wiggins Sanka Wijeratne Steven Gerald Wilder Denise Ann Williams Jennifer Joan Williams Jennifer Shannon Willis Joshua Saul Wilner Courtney Jean Wilson James Scott Fraser Wilson Jessica Mara Winbaum Jason Ian Winn Michael Aaron Winterstein Leora Aliza Wise James Michael Wishart John Stephen Wishart Sandra Christine Wisner Charles Daniel Wolski Matthew Roy Wong Thomas Yau-Tsun Wong Tommy Chiu Yeung Wong Kevin Yonyue Wong Wing Kar Wong Anna Shi Pui Wong Jacky Wong Robert Crist Wood Kristen Leanne Woods Wendy Margaret Wright Carrie Ann Wright Magdalena Wyszomierska Syed Iftekhar Yakub

Valerie Yap Stephanie Lynn Yarmo Hadielia Yassiri Ina Yazerskaya Rita Wing Yan Yeung Jean-Rodrigue Aman Yoboua Diana Younes Sarah Joanne Young Jessica Amy Noble Young Tania Yousaf Anas Youssef David Yun Muneeb Ahmed Yusuf Saba Zadeh Sophia Zahariadakis Leanne Ashley Zawadzki Cora Beatrice May Zeeman Olga Zemlinsky Saba Zia Zeynab Ziaie Moayyed Michael Manfred Ziesmann

9/17/2010 12:56:35 PM

JUST for laughs

HST: Anything But Harmony Marcel Strigberger

The new Harmonized Services Tax is creating anything but harmony. A sudden impulse struck me recently at my nearby Sobey’s supermarket, causing me to buy a package of onion bagel chips.

I ended up buying the bagel chips under protest. After lunch, I fired off a letter to Queen’s Park:

As the cashier rang up the tab, I noticed she was adding in the HST. I protested, saying that surely there must be some mistake. “You can’t charge me tax on a bagel,” I said.

A reply from the Ontario Government was not long in coming. It read:

For the uninitiated, this product consists of about one bagel or so, toasted, thinly sliced, and packaged. Unlike its basic version which sells for about 40 cents, this bagel, in its sliced dehydrated form, goes for about $3.50 for the package. The cashier, one Lorraine, replied, “The computer has rung up the tax. Therefore it must be OK”.

That bit of logic did not sit well with me. I continued my eloquent protest. “No it’s not OK. Bagels aren’t taxable.”

I reinforced this compelling argument by making small circles in the air with my index finger.

The circles did not bolster my oratory with her. She summoned the manager for a second opinion. As we waited for the manager to arrive, a thought occurred to me. Did you notice that every supermarket has at least one cashier called Lorraine?

The manager, one Mr. Hobbs, arrived. He agreed with me that although slightly decimated, if you put all the bagel chips together you probably had one bagel. With that comment, he also made a few circles in the air with his digit. We had struck an instant rapport.

As I waited for Mr. Hobbs to order Lorraine to reverse her Draconian decree, the good manager remarked, “As much as we would like to, there is nothing we can do about the HST designation. You must write to Queen’s Park.” With that, he went on to tell me about a procedure whereby you can have your HST grievance dealt with by a special tribunal. He gave me additional details. 22

002-0008_Briefly Speaking_AUG10.indd 24

Dear Sirs/Mesdames,

he supermarket recently charged me HST on a package of T bagel chips. Surely, as bread is exempt from HST, there must be a mistake. Kindly refund my 46 cents. My cash register receipt is enclosed herewith.

Dear Mr. Strigberger:

hank you for your letter. As you may know, section 43(3 ) T of the GLHST Act, or the Getting to Like the HST Act, provides for referees to inspect the products which are the subject matters of complaints. We have therefore referred this matter to the food and snacks division and a referee will be in touch with you shortly. In the meantime, would you kindly send us a sample of the bagel chips in question. Thank you. Sincerely, Gordon W. Pinkerton Chief Referee, Round Objects Division I figured I was on the right track.

I carefully wrapped up some bagel parts and mailed them from my Thornhill home downtown to Queen’s Park. As I wanted the mini frisbees to arrive intact, I did not dare label the package “Fragile”. A couple of weeks later, I received another letter: Dear Mr. Strigberger:

e have examined the bagel chips which you were good W enough to send us. In order to be fair, we did a taste test comparing the bagel chips to a bagel which we purchased at the King of Bagels Bakery.

August 2010 | Briefly Speaking • En Bref

9/17/2010 12:56:35 PM

JUST FOR LAUGHS y assistant blindfolded me. The test was also witnessed by M Sergeant Jean Claude Gagnon of the OPP. I started the test. I noticed that one product was thick and fluffy and soft. It tasted delicious. The second product was toasty, crunchy and thin. Equally delicious. I concluded that the first sample was a bagel from the King of Bagels. The second sample was your bagel chip. When Sergeant Gagnon removed the blindfold, I saw that I was correct.

Although I am quite buoyant about the outcome, my wife Shoshana does not share my optimism and she is willing to bet me loonies to donuts that I’ll probably just end up with the hole of the bagel. Marcel Strigberger is a humourist trapped inside the body of a civil litigation lawyer- see www.legalhumour.com.

y conclusion is that bagel chips may start out as a bagel. M Once it gets toasted and sliced up, although it may remind you of its former self, it now looks more like a musical compact disk, which as you know is taxable. I conclude therefore that a bagel chip is not a bagel. Calling it a bagel does not make it one. For example, does Boston cream pie come from Boston? ou were accordingly properly taxed. You have 30 days to apY peal my decision to the Minister of Finance, to whom I shall send this file along with the samples upon receipt of your notice of intention to appeal. Thank you for your query. Dudley C. Norbert

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Referee, Food and Snacks Round Objects Division-Edibles As this is purely a matter of principle, I have of course launched my formal appeal to the Minister of Finance.

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9/17/2010 12:56:36 PM

Principles and Aspirations Paralegals – The Rules, Regulations and Codes of Conduct Paul D. Paton

odes of Conduct transmit important messages, both substantive and symbolic, to those they govern and to the public at large.

For lawyers in Ontario, the Law Society of Upper Canada’s Rules of Professional Conduct are both regulatory and aspirational. I like to think of them as both ‘looking down’ and ‘looking up’: they articulate standards of professional behaviour below which no lawyer shall go, as well as signalling principles and aspirations to which we as lawyers are encouraged to reach individually and as a professional community.

So what messages do the Paralegal Rules of Conduct convey? First off, the choice of language is interesting and important, and endeavours to create the sense that paralegals constitute a profession. But note the title: “Paralegal Rules of Conduct”. Under the Law Society Act, the Law Society has the right to make rules and regulations to govern those “providing legal services”. The question of whether paralegals constitute a “profession” has continually been a hot-button topic, yet the Law Society is clearly signalling that it considers those providing legal services to be a parallel profession. Rule two of the Paralegal Rules of Conduct, titled “Professionalism”, firmly stakes this claim: 2.01(1) provides that a “paralegal shall conduct himself or herself in such a way as to maintain the integrity of the paralegal profession.”

If that language sounds vaguely familiar, it should: Rule 6.01(1) of the Rules of Professional Conduct states: “A lawyer shall conduct himself or herself in such a way as to maintain the integrity of the profession.” The Commentaries to the Rule for lawyers speak of public confidence in the administration of justice and in the legal profession, as well as to maintaining the “honour of the Bar.” The Paralegal Rules speak in Rule 1.03 of paralegals having “an important role to play in a free and democratic society and in the administration of justice” and “a duty to uphold the standards and reputation of the paralegal profession and to assist in the advancement of its goals, organizations and institutions.” That section also provides that the Paralegal Rules are “intended to express to licensees and the public, the high ethical ideals of paralegals.” What those “high ethical ideals” are, or the source from which they can be identified, isn’t immediately clear.

Yet elsewhere in the Rules of Professional Conduct for lawyers, the definitions refer to paralegals as persons “licensed by the Society to provide legal services in Ontario”, not as members of a profession. Indeed, recall that Rule 5.01 (Supervision) requires a lawyer to both “assume complete responsibility for his or her practice of law,” and for the direct

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supervision of “non-lawyers to whom particular tasks and functions are assigned.” There is no exemption for supervision of members of a parallel profession; indeed, under Rule 6.01(3), we have a duty to report misconduct in situations where a “licensee” [lawyer or paralegal licensed by the Law Society] has departed from “proper professional conduct”.

Despite this and the language around the licensing of those “providing legal services” in the Law Society Act, the Law Society has created a companion document for the Paralegal Rules of Conduct, which it has entitled the Paralegal Professional Conduct Guidelines. Much like the Commentaries in the lawyers’ Rules of Professional Conduct, these Guidelines

“High ethical ideals”

aim to provide interpretive guidance for the application of the Paralegal Rules of Conduct. In the introduction to the Guidelines, the Law Society states that the Paralegal Rules and Guidelines “should be interpreted and applied with common sense and in a manner consistent with the public interest and the integrity of the profession.”

As yet, it is not clear whether paralegals will be subject to a different standard. Many of the provisions in and the organization of the Paralegal Rules are lifted almost directly from lawyer Rules: while Rule 2 for lawyers refers to “Relationship to Clients” and Rule 3 for paralegals is entitled “Duty to Clients”, both cover and contain rules regarding competence, conflicts of interest, confidentiality, doing business with clients, preservation of client property, and withdrawal from representation. Both the lawyer Rules and the paralegal Rules on competence contain an identical set of “appropriate skills” that must be implemented as each matter requires; the “relevant skills, attributes and values” that are included in the definitions of competence are strikingly similar.

Provisions on fees make for another interesting side by side comparison: both sets of Rules state that the individual “shall not charge or accept any amount for a fee or disbursement unless it is fair and reasonable and has been disclosed in a timely fashion.” In identifying what is a “fair and reasonable fee”, the Paralegal Rules lift the factors from the Commentary to lawyer Rule 2.08 and incorporate them directly into Paralegal Rule 5.01(2). The lawyer Commentary contains August 2010 | Briefly Speaking • En Bref

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language encouraging lawyers “in the best traditions of the legal profession to provide services pro bono”; the Paralegal Rules contain no such language, though Guideline 13, paragraph 10 states that “a paralegal is encouraged, in appropriate cases, to provide legal services pro bono (for the greater good), i.e., for no fee or for a fee that has been reduced.” The shared language of lawyers apparently needs to be spelled out for those without its professional traditions.

In this regard, the adoption by the Law Society of a new Continuing Professional Development (CPD) requirement – and in particular an ethics requirement – is at first glance very good news. Commencing January 1, 2011, lawyers and paralegals must complete in each calendar year at least 12 hours of continuing professional development in “eligible educational activities.” At least three of the 12 hours must be on topics related to ethics, professionalism and/or practice management. But the Law Society has stated that it will be assuming primary responsibility for delivering the required ethics, professionalism and practice management content.

Hopefully this will not preclude learning about different visions of what constitutes a “profession” or “professional responsibility”, and that approaches for lawyers and paralegals will not simply merge in the way that many of the Rules appear to have done. Thus far, the reports of disciplinary proceedings involving paralegals, since the Law Society first became responsible for regulating paralegals in May 2007,

largely deal with appeals of applications for class P1 licenses, particularly ones concerning whether the applicants are “of good character”; failing to respond to communications from the Law Society; or refusing to cooperate with Law Society investigations into complaints filed against the paralegal. It is not yet clear from these cases whether the Law Society’s vision of “professional standards” differs.

In the introduction to a 1915 volume entitled Ethics of the Legal Profession, Wigmore rightly noted, “There is much more to it than rules of ethics. There is a whole atmosphere of life’s behavior.” Codes of Conduct send important messages, but are only the starting point. If professionalism is to mean more than simply adherence to a Code, lawyers will need to remain vigilant in ensuring that both the regulator and the public know and appreciate the value of having a lawyer as their representative or fiduciary. We have some work ahead of us. Paul Paton is Professor of Law and Director of the Ethics Across the Professions Initiative at the University of the Pacific, McGeorge School of Law in Sacramento, California.

more on Paralegals, see page 26

In Memoriam Gregory T. Evans

he honourable Gregory T. Evans passed away suddenly on Sunday, May 23 at the age of 96 . Born on June 13, 1913, in McAdam, New Brunswick, Evans rose to become chief judge of the High Court of

Justice of Ontario, now known as the Ontario Superior Court of Justice. Evans obtained his BA from St. Joseph’s University at Memrancook, Moncton. He was called to the Ontario Bar in 1939. He practised law in Timmins for 25 years with Evans, Bragagnola & Sullivan before he was appointed to the Supreme Court of Ontario where he served on the Trial Division, the Court of Appeal and as Chief Justice of the High Court of Justice of Ontario. He retired from the Supreme Court at age 75. He was then appointed Integrity Commissioner (Ontario) and served for 10 years while serving on several Commissions. He was a past President of the Ontario English Catholic Education Association, a former bencher of the Law Society of Upper Canada and past Vice-President of the Ontario Bar Association. He was a Governor of the American Judges Association, Commissioner for the Commission on the Conflict of Interest (Ontario) and for the Royal

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Commission on the Donald Marshall Jr. Prosecution. He was appointed Knight Commander of the Order of St. Gregory the Great by Pope John Paul II.

He loved the law, the lawyers, judges and court staff that he worked with. He finished his last mediation at age 92. He was passionate about education for young people. He touched many lives and his genuine concern for family, colleagues and friends was legendary, as was his storytelling and sense of humour. Evans was active right up to the end of his life and died shortly after collapsing while waiting to take a drivers’ test to obtain a new license near his home in Orillia. Evans was predeceased by his wife Zita Callon. He leaves his friend, Mary Johnson, eight children and 21 grandchildren.

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Setting the Record Straight: The Current State of Paralegal Regulation Jeffrey S. Percival By now, most Ontario lawyers are aware that paralegals are licensed and governed by the same self-governing professional body that regulates lawyers, the Law Society of Upper Canada (LSUC). In fact, the licensing of paralegals came about as a recognition of the need to regulate non-lawyers who appeared in public courts and tribunals. Such non-lawyers had been offering legal advice without the “safety net” of professional liability insurance and regulatory oversight of their actions.

A major impetus for the regulation of paralegals was the proliferation of non-lawyer court agents in the 1980s, including POINTTS (an agency primarily composed of retired police officers), who defended drivers charged with traffic offences under the Provincial Offences Act. At the time, POINTTS principal Brian Lawrie and his associates were charged under a private prosecution by the LSUC with acting as barristers and solicitors contrary to the Law Society Act. The matter escalated all the way to the Court of Appeal for Ontario, who upheld the acquittal of the respondents in 1987. In his reasons, Blair J.A. noted that “there is a lack of clarity in the statutes governing the legal profession and their application to the respondents. I commend for the Legislature’s attention the clarification of this legislation and also the status of agents and other paralegal which is now a matter of considerable public discussion”. When asked why he decided to fight back against the charges, Lawrie said, “I had acted before for the Attorney General [as a police officer], so why couldn’t I act for someone else by using my experience to defend them [against traffic tickets]?” Following two comprehensive task force reports on the subject of paralegal regulation, the Ontario Legislature passed Bill 14 in 2006, which provided for paralegals to be regulated directly by the LSUC. Since May 1, 2007, the LSUC has been empowered to govern the conduct of both lawyers and paralegals. The overriding principle governing the licensing of both lawyers and paralegals is that anyone in Ontario who provides legal services requires a license, unless they are exempted under the Law Society Act or a LSUC by-law. The Law Society Act provides at section 1(5) that “a person provides legal services if the person engages in conduct that involves the application of legal principles and judgment with regard to the circumstances or objectives of a person.”

Under the LSUC’s By-Law 4, lawyers are granted licenses to “practice law” in Ontario, while paralegals are granted licenses to “provide legal services” in Ontario. While there was originally some consternation among lawyers about the definition of what lawyers and paralegals are allowed to respectively do, By-Law 4 offers substantive guidance on the limitations of paralegal practice.

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For instance, Subsection 6(2) of By-Law 4 authorizes licensed paralegals to represent someone in the following for: Small Claims Court, in the Ontario Court of Justice under the Provincial Offences Act, on summary conviction offences where the maximum penalty is six months imprisonment or less, and before administrative tribunals, including the Financial Services Commission of Ontario (FSCO).

As part of those proceedings, licensed paralegals can give legal advice concerning legal interests, rights or responsibilities with respect to a proceeding, draft or assist with drafting documents for use in a proceeding and negotiate on behalf of a person who is a party to a proceeding. Licensed paralegals are not permitted to provide legal services that only a lawyer may provide, such as drafting wills, handling real estate transactions or settling estates matters, other than under the direct supervision of a lawyer. Licensed paralegals are also not permitted to appear in Family Court as of May 1, 2007.

Certain categories are exempt from licensing as paralegals. These include immigration consultants, collection agency staff, process servers, and persons working under a lawyer’s supervision who do not appear in court or before a tribunal. Recently, there was a well-publicized motion scheduled to be brought before the LSUC seeking to expand the role of paralegals to include the right to represent individuals in family law matters. This motion was ultimately withdrawn following significant opposition from the family law bar and others.

However, it is expected that there will be renewed efforts in the near future on the part of paralegals to challenge the restrictions on their scope of practice. Such challenges are likely to focus on such activities as uncontested divorces and residential real estate transactions. The defined parameters of the areas in which paralegals can provide legal services are likely to be revisited again in the courts. Lawrie expects there will be an adjustment period of about five years or so as the LSUC and licensed paralegals get used to the principle of self-regulation and professional standards are enforced. Ultimately, he sees the role of paralegals increasing to meet public demand. As he sees it, “the average citizen has the smarts to figure out what level of legal representation they really need. You don’t always need to see a doctor when a nurse can help you out. The role of the paralegal is similar.” Jeffrey S. Percival, Ogilvy Renault LLP

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Mr. Premier Returns Home It’s Goodbye Bay Street, Hello Brampton Mitch Frazer and Kathleen Davis

Former Premier Bill Davis served Torys for 24 years

fter retiring as Premier and after 24 years at Torys LLP, former Premier William Davis has returned to Brampton

to join his eldest son at Davis Webb LLP, a firm founded by his father, A. Grenville Davis, 94 years ago. Upon announcing his departure, Mr. Davis expressed sadness at ending his tenure at Torys, as well as excitement to be rejoining his family firm. “I am leaving Torys with mixed feelings because I am so fond of everyone here and I have enjoyed being part of this great law firm. However, I am also proud and excited to be joining my son, Neil, and I am looking forward to working with him for the next several years.”

Neil Davis, a partner at Davis Webb, is delighted at his father’s return to Brampton. “All of us at Davis Webb are excited to have my father rejoin the firm. After a distinguished career serving the people of Ontario, followed by 24 years as

“Pride and affection”

a lawyer at Torys, we’re looking forward to benefiting from his experience and wisdom on a daily basis.”

Torys’ managing partner, Les Viner, expressed thanks for Mr. Davis’ significant contribution to the firm over the years. “Since 1986, we have been blessed to have had the good fortune of working with, and being associated with, the outstanding Premier of our province, Bill Davis. He is thought of by the people of Ontario with pride and affection, and our reputation at Torys has been enhanced significantly with Bill’s presence at the firm. I hope and I expect that we will continue to see Bill on visits here, where he will always be welcomed.”

Other members of the firm expressed similar sentiments at Mr. Davis’ departure from Torys. The Honourable Frank Iacobucci, former Justice of the Supreme Court and Counsel at Torys, said that Davis’ presence at the firm would be dearly Briefly Speaking • En Bref | August 2010

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missed and expressed admiration for his “first-class mind” and unwavering humility. James M. Tory, Chair Emeritus and Counsel at Torys, also spoke fondly of his long-time friend and colleague. “He is a good human being with great judgment,” said Mr. Tory, noting that he had sought Bill’s advice on many occasions when confronting difficult legal, political, and ethical issues.

Brian Flood, former Chair and Counsel at Torys, regarded Davis as both a trusted colleague and a dear friend. “During Bill Davis’ twenty plus years at Torys, he made an enormous contribution to our firm and to my enjoyment of the place.

“First-class mind”

His national reputation for decency, integrity and leadership added immensely to what we at Torys strove to be as a firm.” Like Mr. Tory, he noted that he had often been the beneficiary of Davis’ advice. As he explained, “He puts apparent crisis in perspective, tries to understand all points of view and focuses on practical solutions. His judgment and instincts are as good as I have ever experienced.” Mr. Davis was admitted to the Ontario bar in 1955 and worked at Davis Webb until his election to the Ontario Legislature in 1959. He was a Member of Provincial Parliament from 1959 to 1985 and Premier of Ontario from 1971 until 1985. In 1986, he was inducted as a Companion of the Order of Canada, and was invested with the Order of Ontario the following year. Since that time, he has been the recipient of numerous awards and honorary degrees in recognition of his extraordinary contributions to Canadian society and, in particular, to the province of Ontario.

Mitch Frazer is a partner at Torys LLP and a long-time mentee of Mr. Davis (despite the fact that Mr. Davis considers him philosophically misguided). Kathleen Davis is a summer student at Torys LLP, who is excited to join her uncle, Abraham Drassinower, at a firm that her grandfather was so proud to be a member of for 24 years .

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A Prescient Look Back Security Operations at the G8/G20 Last May, former Canadian Intelligence Review Committee Chairman, Ron Atkey, and Police Chief, Bill Blair, discussed the predicted impact the G20 Summit would have on life in Toronto and the role of the Canadian Security Intelligence Service and other federal agencies. This lecture was part of the “Discussions at the Bistro” series designed to showcase leading political figures, intellectuals and entrepreneurs while creating a forum to discuss issues affecting Canadians. The Facts

On June 23-27, we will witness one of the one of the largest security operations in our country’s history. The cost was announced by the federal government on May 26th at a staggering $833 million, sure to creep to $1 billion by the time all is said and done. And this comes less than six months following the initial ground-breaking security operations established in Canada’s west coast for the Vancouver/Whistler Olympics in February. What about security costs of previous Summits (compared to the $833 million for Canada)? Well, the G20 Summit in Britain last year was $30 million, the Gleneagles G8 Summit in Scotland in 2005 was $110 million, and the 2008 G8 Summit in Japan was $381 million.

Government officials in Canada point out that it is unprecedented that G8 and G20 Summits are now being held backto-back in the same country (a decision taken by world leaders almost a year ago), and that the decision last winter to move the G20 Summit from Muskoka to Toronto was a big contributor to increased security costs because of the need for lodging and securing the many people accompanying the G20 leaders. What Organizations?

Here is an overview of the federal arrangements costing up to a billion dollars: the RCMP is getting approximately 50% (over $100 million will flow through to the Toronto Police Service), and the Canadian Forces about 20%, leaving the other 30% for CSIS, NAV Canada, Transport Canada, Immigration Canada and Public Health and Safety. Add to this the provincial and municipal police, private security firms and security personnel accompanying foreign leaders while in Canada. This is a smorgasbord of security personnel. Threats •

Physical harm to world leaders – remember, the Presidents of China, Russia, the US, and India and Prime

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• • • •

Ministers from the UK, Japan, Germany and Canada will be in our midst. Protests involving criminal activity which could include violence and/or destruction of property Acts of terrorism such as bombings or hostage-takings or hijackings of vehicles (al-Qaeda and its adherents remain the number one priority of CSIS which has over 200 such individuals in Canada on their radar screen) Use of the Internet to recruit, plan and execute acts of terror – involving young Canadians who become radicalized from home or abroad (CSIS Director Richard Fadden on May 11, 2010) Unintended violations of the civil liberties of Canadians

Techniques • •

• •

• • •

Law enforcement officials (i.e., the police) have the biggest challenge in applying the Criminal Code and municipal bylaws effectively and fairly. The securing of areas, buildings and meeting facilities is a challenge for the military, police and private security companies Information exchange and intelligence sharing, with appropriate caveats, is essential to effectiveness through Integrated Security Units (ISU’s) Establishing safe assembly areas or “designated free speech areas” for protestors becomes central to security operations Use of authorized electronic interceptions or wiretaps by the police or CSIS Use of paid or unpaid informers or sources by the police or CSIS, under established procedures authorized by law Surveillance of persons of interest by simple or sophisticated means, again as authorized by law

Risks • •

Overzealous policing – violence begets violence Infiltration of protest groups may erode their privacy rights and lead to unreasonable restriction on their exercise of free speech or movement

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he es

•

• • •

Inconvenience to the general public – rescheduling of the Blue Jays and the Phillies series to Philadelphia, the TTC and GO Transit service, automobiles, taxis, restaurants, night clubs, theatres and entertainment venues, day care centres Loss of productivity for employers in the secure area who really have no alternative but to give the Friday, June 25 as a paid holiday so employees don’t come downtown to work Unreasonable restrictions on use of advertising space, i.e., billboards – within the secure area (this was a free speech problem in Vancouver last February) Public cynicism: what are we getting for this billion dollar security exercise other than a lot of inconvenience?

Rewards •

Successful G8 and G20 Summits with meaningful discussions on world economic and

•

Canada is seen by the world as hosting another major event on a terrorist–free basis through effective security arrangements.

•

Social issues, with Canada’s leadership role as a major player enhanced as a result

Canada is seen by the world as a civilized society where protest and dissent opportunities exist under our Charter of Rights and Freedoms for those who disagree with world leaders.

Designated Free Speech Area

This was originally to be Trinity Bellwoods Park but after consultations with neighbours in the area it was changed to Queens Park North. This was done because it can easily be reached by public transit and is not too close to residential areas. Yet, the University of Toronto has had to suspend most of its operations from June 24-28, at considerable disruption to some of its ongoing programs.

Under the Canadian Charter of Rights and Freedoms, peaceful protest groups cannot be confined to a designated area. Yet the Charter does not authorize physical violence or wanton destruction of property. There is a fine line to be drawn which will test the legal mettle of many lawyers and judges who will grapple with the cases likely to arise from protests during this period. Similarly, what goes on at the imposing detention and holding centre being constructed at the former film studio on Eastern Avenue to process arrested protesters will be closely scrutinized by the lawyers retained for bail hearings and to act as defence counsel, and by the judges who will hear cases brought to trial. The media will not be far behind. Clearly, there is another chapter to be written over the next few months that will clearly test the rule of law and the fairness of our legal system in Canada. Ronald G Atkey P.C., Q.C., Professor of National Security Law at Osgoode/York and Western Law; First Chair of SIRC; Vice-President Ontario – ICJ Canada.

OBA Student Writing Award, 2010-2011 The OBA Student Division Executive is pleased to announce the winner of the OBA Student Essay Contest … Congratulations to Marion Van de Wetering! the Honourable Justice Heather mcgee offered the following comments commending marion’s work on the paper entitled Implementing the Proportionality Principle: Is Ontario’s Justice System Ready for Alternative Billing Arrangements?, ms. van de Wetering’s paper is both timely and practical. Focusing on one of the most significant challenges to bench and bar this decade, ms. van de Wetering ably explores the authority for alternative billing, its range of practise and its enforcement within assessments. she concludes that should courts and legislators be serious about enacting changes that support proportional billing, which in turn support access to justice, we must be prepared to advance beyond the common law principals which sustain current models of hourly billing. Justice mcgee was impressed by the field of papers touching on diverse fields such as mental Health courts, the canadian Human rights commission, domestic violence, Persons with disabilities and alternative sentencing, and was most impressed by marion’s paper which most fully met the substantive direction set out within the essay criteria in an articulate and compelling fashion. Further, Justice mcgee would like to extend an Honourable mention to sherri beattie. sherri’s paper entitled Beyond Window Dressing: “Access to Justice” as a Policy Rationale in the Certification of Class Proceedings explored “access to justice” as a compelling and substantive criteria within the certification of class proceedings.

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Hommage à Bastarache/ Honouring Michel Bastarache David Leitch Le 13 avril, cinquante personnes ont assisté à une soirée aux locaux de l’ABO pour rendre hommage à l’honorable Michel Bastarache, juge de la Cour suprême de On April 13th, the OBA’s Official Canada de 1997 à Languages Committee, in 2008. Organisé par le collaboration with the Aboriginal, Comité des langues ofAdministrative, Constitutional, ficielles en collaboraCivil Liberties and Human Rights, tion avec six sections Education, and Labour and - autochtones, travail, Employment Sections, hosted constitutionnel, adan evening to honour Michel ministratif et travail Bastarache, former Justice of l’évènement a permis the Supreme Court of Canada, aux participants de for his many contributions to constater l’envergure Canadian jurisprudence. des contributions de Michel Bastarache à la jurisprudence canadienne, surtout en ce qui concerne l’interrelation entre les droits individuels et les droits collectifs. Dans son toast pour commencer la soirée, le juge Paul Rouleau a souligné qu’avant sa nomination à la Cour suprême, Michel Bastarache mena une carrière extrêmement variée : fonctionnaire, In his opening toast, Justice Paul avocat, PDG, proRouleau noted Michel Bastarache’s fesseur, auteur, multi-faceted career before being juge. Toutefois, appointed to the Supreme Court of le juge Rouleau Canada, as a federal civil servant, a noté qu’en lawyer, CEO, professor, author and tant qu’acadien judge. Throughout, however, his néo-brunsAcadian background shone through wickois, Michel his passion for the linguistic rights Bastarache resta francophones outside Quebec. toujours préoccupé, voire passionné, par la question des droits linguistiques des francophones hors Québec.

Indeed, the first speaker, Professor Pierre Foucher of the University of Ottawa, pointed out that, as a lawyer, Michel Bastarache “was involved in most if not all the cases pertaining to language rights in the 1980s, culminating in the seminal decision Mahe v. Alberta, where Chief Justice Dickson adopted many of Michel’s ideas as expressed in his factum and stated that the purpose of minority language education rights was to ‘preserve and promote the two official languages of Canada, and their respective cultures’”. Ensuite, a poursuivi le professeur Foucher, lorsqu’il devint juge de la Cour suprême luimême et que l’occasion lui fut présentée dans l’affaire Beaulac, le juge Bastarache « n’hésita pas à corriger fermement l’erreur que représentait l’approche restrictive à l’interprétation des 30

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droits linguistiques ». Beaulac, Professor Foucher continued, enunciates “the true purpose of language rights, notably the fact that they mean real equality, that they entail a governmental obligation to act, that language rights can never be the result of some reasonable accommodation or that administrative inconvenience are never an excuse to do nothing.” Turning to the subject of aboriginal rights, the second speaker, Susan Vella of Rochon Genova, analysed Michel Bastarache’s last judgment, his concurring but radically different reasons in R. v. Kapp. This case involved a section 15 Charter challenge to the provisions of the Fisheries Act that gave certain aboriginal communities preferential fishing rights. As a result, it is the majority’s attempt to reformulate the Court’s section 15 jurisprudence that has attracted the most attention. However, as Ms. Vella explained, the case also deserves to be studied for Justice Bastarache’s interpretation of section 25 of the Charter. He concluded that while section 25 does not create new rights, it is a shield against the intrusion of the Charter upon existing aboriginal rights and that the case could be decided on that basis alone. “Throughout his reasons”, Ms. Vella noted, “[Justice Bastarache emphasizes] that the rights protected by section 25 are those which accrue to the collective Aboriginal peoples as communal rights and not the private rights of individual First Nations persons.” She concluded that Justice Bastarache’s judgment “gives judicial voice to the distinctiveness of Aboriginal rights and freedoms within the Canadian constitutional framework.”

The third speaker, Justice Robert Sharpe, began his remarks by saying: “the theme for this evening’s program extends beyond minority language rights and explores the impact of Justice Bastarache’s broader vision of collective rights in the Canadian constitutional framework. In my view, his perception of the relationship between individual and collective rights guaranteed by the Charter has had a significant influence on Canadian rights discourse.” Pour illustrer cette influence, le juge Sharpe a discuté le jugement majoritaire de la Cour suprême dans l’affaire Dunmore c. Ontario, un Justice Sharpe explained how this jugement réinfluence is well illustrated by Justice digé par Michel Bastarache’s majority opinion in Bastarache. Il Dunmore v. Ontario. Agricultural s’agissait de la gaworkers maintained that their exclusion rantie de la liberté from the province’s labour relations d’association, inrégime constituted a violation of their voqué en l’espèce freedom of association. This argument pour contester was accepted in the lower courts l’exclusion des trabut rejected by Justice Bastarache, vailleurs agricoles reasoning, in part, as follows: du régime des reAugust 2010 | Briefly Speaking • En Bref

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lations de travail. Cette contestation a été rejetée et par le juge de première instance, le juge Sharpe lui-même, et par la Cour d’appel de l’Ontario mais, par la suite, a été accueillie par la Cour suprême. Le juge Sharpe a expliqué la première étape du raisonnement du juge Bastarache ainsi:

He insisted upon giving freedom of association a collective dimension and revived Chief Justice Dickson’s dissent in the Labour trilogy insisting that freedom of association includes collective activities that have no individual counterpart or equivalent. As Justice Bastarache put it, “the very notion of ‘association’ recognizes the qualitative difference between individuals and collectives”. He did not put individual rights in conflict with collective rights but rather perceived collective rights as sometimes being the best or even only - way to advance Charter rights. Drawing directly on the analogy to language rights which can only be realized in a community, he reasoned that “because trade unions develop needs and priorities that are distinct from those of their members individually, they cannot function if the law protects exclusively what might be the ‘lawful activities of individuals’”. He recognized that the collective is qualitatively distinct from the individual and that individuals associate not only because there is strength in numbers but also because communities embody objectives that individuals cannot. This meant that exclusion from a protective legislative regime may amount to the equivalent of an affirmative interference with the effective exercise of the protected freedom ...

Ensuite, le juge Bastarache écarta l’argument voulant que la violation du droit d’association des travailleurs agricoles ne puisse être attaquée en vertu de la Charte car une telle violation aurait découlé des gestes d’un employeur privé et non d’un acte gouvernemental. À Justice Bastarache then rejected the cet égard, le argument that a Charter violation cannot juge Sharpe be made out if it is based on the conduct a observé : of private employers rather than on « [Le juge government conduct. Justice Sharpe Bastarache] observed: “Justice Bastarche wisely held a sagement that the participation of private actors in souligné a violation of fundamental liberties does que la parnot shield the State from judicial review ticipation de under the Charter.” [author’s translation] personnes privées à la violation de libertés fondamentales ne met pas l’État à l’abri d’un contrôle judiciaire fondé sur la Charte. »

Faisant la boucle avec les deux autres conférenciers, le juge Sharpe a conclu ses propos en observant : « Justice Bastarache’s communal and equalitarian conception of the freedom of association that drove the Dunmore decision is also distinctive feature of his language rights and aboriginal jurisprudence. The Dunmore decision brought Charter rights to bear upon the rights of vulnerable workers and marked a Justice Sharpe concluded his significant step in the remarks on this theme ... evolution of Charter rights. Like so many other of his decisions, Dunmore demonstrates the strength of Michel Bastarache’s contribution to Canadian law during his illustrious career on the bench.” Vers la fin de la soirée, j’ai eu l’honneur d’annoncer la création du Prix Bastarache de l’ABO dont le but et les modalités Briefly Speaking • En Bref | August 2010

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sont publiés à la page __. Finalement, Michel Bastarache a été invité à prononcer un discours de clôture dans lequel il a remercié l’ABO des honneurs qui lui ont été accordés.

Near the end of the evening, I had the honour of announcing the creation of the OBA Bastarache Award. For further information about this Award, see page __. Justice Bastarache then made the closing comments, thanking both the OBA and the speakers.

Le Prix Bastarache/ The Bastarache Award

En reconnaissance des efforts de l’honorable Michel Bastarache dans la promotion et l’avancement des langues officielles du Canada, l’ABO remettra le « Prix Bastarache » à un(e) étudiant(e) d’une faculté de droit de l’Ontario qui a contribué à l’avancement des langues officielles au sein du système juridique de l’Ontario.

In recognition of the efforts of the Honourable Michel Bastarache in promoting and advancing Canada’s official languages, the OBA will present the “Bastarache Award” to a student of an Ontario Faculty of Law who has contributed to the advancement of official languages in Ontario’s legal system.

David Leitch est arbitre à la Commission de services financiers de l’Ontario et ancien président du Comité des langues officielles de l’ABO David Leitch is an arbitrator at the Financial Services Commission of Ontario and a past president of the OBA’s Official Languages Committee

oba.org/BASTARACHE

Ontario Bar Association

Mentorship

The Ontario Bar Association is launching a mentorship program that will give young lawyers a head start into the legal profession. Applications are being accepted now. For complete information, visit the web page www.oba.org/mentorship This program will be offered in: • • • •

• GTA • Guelph • Windsor Ottawa/Kingston

Sudbury Sault Ste Marie Thunder Bay

9/17/2010 12:56:50 PM

Small Firm Expo, “The Best CLE I Ever Attended” Joe McCallum I recently attended the Small Firm Expo, a joint presentation of the OBA and the Law Society, co-chaired by Donna Neff and Dan Pinnington. As a partner at a small firm; Chair of the OBA Sole, Small Firm and General Practice Section; and most importantly a certified IT light-weight, I was hoping to gain insight into what technology is available to make my practice more efficient and profitable. Surprisingly, the event showed me that I already had much of the technology I needed, but had been underutilizing it. I have always been one of those people who buy devices and immediately set aside the instruction booklet because I don’t have time to read it. I think the technical term for those people is ‘man’. As a result, I stumble through learning the core functions and then promptly forget that I’m only scratching the surface of the device’s capabilities. Nowhere was this more obvious than in the presentation on smart phones. I have carried one around for three years now and use it, almost exclusively, for phone and e-mail purposes. I discovered there is much more available but I would never have taken the initiative to figure it all out. There’s something reassuring about having an expert stand in front of you and explain what their favourite ‘apps’ are.

The Expo also revealed another area in need of an upgrade. I had visions of following Donna Neff into the paperless office universe someday but realized that won’t happen with my single feed desktop scanner. Our office has always had the ability to scan larger volumes from the photocopier, but since it’s on another floor, that rarely happens. Considering the reasonable price and volume capacity of new scanners, it really does make sense. Since Expo, I have scanned every piece of client-related correspondence that comes into my office. The greatest benefit has been my ability to access opposite counsel’s correspondence remotely and respond to client inquiries or the correspondence itself. Plus, my staff has become more efficient as I am no longer asking them to fax documents to court libraries or hotels. 32

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Another helpful program topic was the use of social media. There were two programs: one, on a very introductory level, which was perfect for a neophyte like me, and a second, more advanced level. Since Expo, I have ‘linkedin’ with many clients and colleagues. I haven’t yet developed the discipline to limit

“Presenters also discussed other social media such as Facebook and Twitter”

my time on ‘linkedin’, as suggested by one of the speakers, but I suspect that will come in due course. Presenters also discussed other social media such as Facebook and Twitter. With so much to consider, I’m taking baby steps and learning one at a time, and I’m thankful to the program for the confidence I’ve gained to get involved. I also attended 60 Tips in 60 Minutes, and walked away with at least 10 tips that will help me both in practice and in everyday life.

If, like me, you are constantly balancing running your practice with the desire to continue learning, then at the end of a program, you probably ask yourself what you’ve learned and whether attending was a good use of time and resources. As I left, it occurred to me, as a small firm lawyer, that the Small Firm Expo had been the best CLE event I ever attended. Given the increasing popularity of the program since its inception, I suspect many attendees agree with me. Donna and Dan are to be congratulated and thanked for their efforts, as I will definitely be back. I strongly recommend it to you and hope to see you there next year. Joe McCallum is a Partner in the firm of Heelis Williams Little & Almas LLP in St. Catharines and Chair of the OBA Sole, Small Firm General Practice Section.

August 2010 | Briefly Speaking • En Bref

9/17/2010 12:56:52 PM

Opinion

A Few Words on Publication Bans They’re Here to Stay James Morton Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, upholds the mandatory publication ban provisions of the Criminal Code dealing with bail hearings. In so doing, the Supreme Court made clear that freedom of expression can co-exist with the

“Freedom of expression can co-exist with the rights of an accused to a fair trial”

rights of an accused to a fair trial. The decision carefully balances the importance of open courts, so that the public can see what is happening and be assured justice is being done, with the need to ensure parties in legal proceedings have a fair hearing with litigation decisions based on the case before the court and not on fears of adverse publicity.

Toronto Star is important far beyond the bail context. The Court makes the point that publication bans do not restrict information from the public forever but merely STG_OBA_hfpg_287c_09_09 9/23/09 10:35for AMa limited Page 1

(and relatively brief) period of time. While this may impact the information’s newsworthiness, it does not limit public scrutiny of the judicial system. Now, as a practical matter, if a publication ban lasts years rather than months, the argument that public scrutiny is not impaired is weakened but the point remains.

Provided limitations on reporting judicial stories in the media are for a brief period, and are limited to situations where genuine prejudice to parties would likely occur, publication bans are quite consistent with a free and democratic society. James Morton, Steinberg Morton Hope & Israel LLP, OBA Past President

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Call us today at (888) 667-5151 or visit www.stewart.ca.

Briefly Speaking • En Bref | August 2010

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9/17/2010 12:56:56 PM

Making Dollars and Sense of “Electronic Production” James Morton

he legal breadth of documentary disclosure is legally the same for electronic documents as other documents; however, proportionality (now in Rule 29.2) is even more pressing in the electronic arena. Courts have limited disclosure by holding that only where actual gaps in electronic form are identified will further production be ordered (Mathieson v. Scotia Capital 2008).

Following this concept, in Dulong v. Consumer Packaging Inc., the court held that a broad request from a plaintiff that the corporate defendant search its entire computer systems for e-mail relating to matters in issue in the litigation was properly refused on the grounds that such an undertaking would, “having regard to the extent of the defendant’s business operations, be such a massive undertaking as to be oppressive”. Similarly, in Jaskhs Enterprises Inc. v. 1444707 Ontario Ltd., Cullity J. found:

I am satisfied that the demands made on behalf of Osiris in Mr Campbell’s letter of February 4, 2004, that it has continued to insist upon, were excessive and unreasonable both in the nature and extent of the information required and the timelines it purported to impose. …

Perhaps most helpful in describing the limitations on production is the decision in Sourian v. Sporting Exchange Ltd., where Master MacLeod held: An electronic database falls within the definition of “document” in our [Ontario] rules … The challenge in dealing with a database, however, is that a typical database would contain a great deal of information that is not relevant to the litigation. Unless the entire database is to be produced electronically together with any necessary software to allow the other party to examine its contents, what is produced is not the database but a subset of the data organized in readable form. This is accomplished by querying the database and asking the report writing software to generate a list of all data in certain fields having particular characteristics …

Unlike other documents, unless such a report is generated in the usual course of business, the new document, the requested report (whether on paper or on CD ROM) would have to be created or generated. Ordering a report to be 34

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custom written and then generated is somewhat different than ordering production of an existing document. I have no doubt that the court may make such an order because it is the only way to extract the subset of relevant information from the database in useable form. On the other hand, such an order is significantly more intrusive than ordinary document production. A party must produce relevant documents but it is not normally required to create documents. Accordingly, such an order is discretionary and the court should have regard for how onerous the request may [be] when balanced against its supposed relevance and probative value (emphasis added).

In general, preservation of documents will be ordered but an injunction to produce them or granting direct access to a party’s records will not be allowed. Hence, in Schuster v. Royal & Sun Alliance Insurance Co. of Canada 2009 CarswellOnt 6586 held: In Wice [2009 CanLII 36310] and Leduc [2009 CanLII 6838], the Court ordered production for inspection of documentary material in the manner provided for by Rule 30 and required the responding party to preserve their Facebook content in the interim. It did not, however, grant direct access to the private area of the responding party’s Facebook website.

In summary, where a case is of limited financial value, the court will balance the cost of production against the value of the documents and the litigation. In cases of large financial value, particularly where the plaintiff is opposing production, the strict rule of production will be enforced. James Morton, Steinberg Morton Hope & Israel LLP, OBA Past President

August 2010 | Briefly Speaking • En Bref

9/17/2010 12:56:58 PM

WANTED Yo

ur Jo b Pos The Le ting gal Ca

is offe reer C r tary se ed as a com entre p of the rvice to mem limenO b n ers t a r io Bar Associa tion Find u s homep on the OBA a ge – Caree r Cent click ‘Legal re’ E

-mail submit ccrocker@ob a caree a r oppo .org to rtunity today.

Bonnie Tough to Receive Civil Litigation Top Honours On September 29, 2010, the OBA will present the 2010 Award for Excellence in Civil Litigation to Bonnie Tough. Bonnie received her law degree from Osgoode Hall Law School in 1976. She began her career as a litigator with Blake, Cassels & Graydon LLP and went on to establish a boutique litigation practice, where she is currently the senior partner, at Tough & Podrebarac LLP.

Bonnie’s focused area of expertise is insurance litigation, and she is a highly regarded member of the class action bar. Her abilities have led to her being retained by both plaintiffs and defendants in class actions, unusual in an area of law that designates counsel as acting for “one side” or the other.

Bonnie has also practised health law and was counsel to the Canadian Hemophilia Society before the Krever Inquiry into the Canadian Blood System. She remains one of four lawyers appointed by the courts to supervise the administration of the Hepatitis C settlement. She has received special recognition from the CHS for her constant efforts on behalf of the Society’s members.

Bonnie is a past director of the Toronto Lawyer’s Association and the Advocates Society; a past vice-chair of the Law Society Civil Litigation Certification Committee; and most recently, a Bencher of the Law Society of Upper Canada and vice-chair of the Professional Regulation Committee. Bonnie’s skills in oral and written advocacy, her contributions to legal education and her leadership within the civil litigation bar make her an ideal choice for the 2010 OBA Award for Excellence in Civil Litigation.

Date: Wednesday, September 29th, 2010 Place: Royal York Hotel, Toronto Tickets: www.oba.org/civilaward

Briefly Speaking • En Bref | August 2010

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9/17/2010 12:57:00 PM

awards season

Galas, Receptions and Honours – Oh My!

ard for BA Aw 20 10 O ished Ser vice u Distin g axe, Ph.D. S e n n ia D

2010 OBA Award for Distinguished Ser vice Steven Rosenhek

2010 OBA Award for Distinguished Service Jonathan Speigel

L inda A dlam M a Award for Volu nnin g nteerism Audrey P. R am say

The OBA’s 2010 awards season was a flurry of galas and dinners honouring the Association’s best and brightest legal minds. Kicking off in May, and carrying right on through to the end of June, we gathered to celebrate Section award winners, rub elbows with the Attorney General and members of the Judiciary. Not to mention reconnect with our colleagues and friends. But it’s not over yet! After a short summer break, we’ll reunite on September 29th for the Civil Litigation Award Dinner, honouring 2010 award recipient, Bonnie Tough. Below, our OBA shutterbug captured shots from the OBA Awards Gala; Judicial Reception; and the year-end award dinners, honouring excellence in: Trusts and Estates, Pensions and Benefits, Alternative Dispute Resolution, Municipal Law, Charity and Not-For-Profit Law, Real Property, International Law, and Family Law. See if you can find some faces you recognize.

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August 2010 | Briefly Speaking • En Bref

9/17/2010 12:57:30 PM

Awards season

Briefly Speaking â&#x20AC;˘ En Bref | August 2010

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9/17/2010 12:58:05 PM

awards season

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August 2010 | Briefly Speaking â&#x20AC;˘ En Bref

9/17/2010 12:58:46 PM

Awards season

Briefly Speaking â&#x20AC;˘ En Bref | August 2010

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9/17/2010 12:59:33 PM

PREVIEW OF FALL 2010 CLE PROGRAMS Fundamentals of Employment Law (YLD)

20th Annual Operation Update

Tuesday, September 21

Friday, October 29

Interactive and Digital Media: The (R)evolution Continues

Tendering and Procurement in the Construction Sector: The Essentials

Wednesday, September 29

Tuesday, November 2

“Bread and Butter” Issues in Family Law

10th Annual Franchise Law Conference: What We Can Expect in the Next Decade

Thursday, September 30

Thursday, November 4

Trusts, Trustees, Trusteeships 2010 Friday, October 1 (am)

Tax Considerations for Succession Planning, Trusts and Estates Practitioners – A Practical Planning Approach Friday, October 1 (pm)

What Lawyers Forgot or Never Learned About Title Searching and What You Need to Know!

Navigating Canada’s New Competition Law Regime: Practical Advice for Guiding Your Clients to Success Friday, November 5

Tips for Effective Advocacy through Alternative Dispute Resolution (YLD) Thursday, November 11

Thursday, October 7 (am)

4th Annual Ministry of Environment Update: Recent and Upcoming Changes to Ontario’s Environmental Laws

The Lost Art of Requisitions (YLD)

Wednesday, November 17

Thursday, October 7 (pm)

9th Annual OBA Charter Conference

Insurance Law: Catch Up with Judicial Pronouncements on the New Rules of Civil Procedure Regarding Experts

Friday, October 15

Tuesday, November 23

Insurance Law: What You Need to Know (YLD)

The 2010 OBA Class Actions Colloquium

Thursday, October 21

Wednesday, December 1

Injunctions: Winning the Case before Trial

Land Use Planning and Human Rights: When Can Municipal Bylaws Run Afoul of the Charter and Ontario Human Rights Code?

Wednesday, October 27 (am)

Commercial Litigation Wednesday, October 27 (pm)

26 Briefly Speaking (Multi-tool)

SAVE THE DATE:

Thursday, December 9

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August 2010 | Briefly Speaking • En Bref

9/17/2010 12:59:40 PM

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