June 2010 by Ontario Bar Association

OBA Professional Development | Section Programs - OBA Exclusive

FEATURES •

Practice specific

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timely

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Quick – breakfast, lunch or dinner

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great speakers

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current topics

www.oba.org/pd for a complete listing of programs

OBA Professional Development | CLE Programs - OBA Advantage FEATURES • • • •

Practice specific Timely Cost effective Great speakers

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

Mark Your Calendar Now for FALL 2010 Annual CLE Programs 9th Annual Charter Conference – September 24th 20th Annual Operation Update – October 15th 10th Annual Franchise Law Conference – November 4th Ministry of the Environment 2010 Update – November 17th 2010 OBA Class Action Colloquium – December 1st

www.oba.org/pd

for a complete listing of programs

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 The Honourable Justice Heather McGee Superior Court of Justice Chantal Brochu Buset & Partners LLP The Honourable Doug Lewis Lewis Downey Tornosky Lassaline & Timpano Jeffrey S. Percival Ogilvy Renault LLP Maria Sagan Student Editor / Rédactrice étudiante J. Andrew Sprague Miller Thomson LLP Questions or Comments? / Questions ou commentaires? Editorial Team, Briefly Speaking/ Rédaction, En bref Julia Hanigsberg Ryerson University Chair, Public Affairs Committee Président, Comité des affaires publiques Louise Harris Director of Public Affairs/ Directrice des affaires publiques 416-869-1047 ext/poste 355 lharris@oba.org Cheryl Crocker Public Affairs Officer/ Responsable des affaires publiques 416-869-1047 ext/poste 309 ccrocker@oba.org Rob Gilmour Advertising Sales Vente d’annonces 416-869-1047 ext/poste 406 Filippo Conte Bilingual Public Affairs Officer/ Responsable bilingue des affaires publiques 416-869-1047 ext/poste 346 Janet Weldon Graphic Design/Graphisme 416-869-1047 ext/poste 363

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Behind The Bench

The Wills Project

From eDiscovery to iPhones

JOT Across the Province

Cover photograph: ‘Hand of a Nation’ was Rebecca Annibale’s Law Day 2010 Photography Contest submission.

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

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

Briefly Speaking • En Bref | June 2010

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ONTARIO COURT OF APPEAL

Awards

The Honourable Andromache Karakatsanis, a judge of the Superior Court of Justice of Ontario, is appointed to the Ontario Court of Appeal to replace Madam Justice Susan E. Lang, who elected to become a supernumerary judge as of January 6, 2010.

The 2009-2010 Annual OBA Gala Awards Dinner will be held on Thursday, June 17th at the Park Hyatt Hotel in Toronto. The President’s Award, the Award for Distinguished Service and the Linda Adlam Manning Award will all be presented. Ontario Attorney General Chris Bentley will be in attendance to present the Mundell Medal for legal writing on behalf of the Ministry of the Attorney General.

Madam Justice Karakatsanis received a Bachelor of Laws (LLB) from Osgoode Hall Law School in 1980 and was admitted to the Ontario Bar in 1982. After completing her clerkship with the Chief Justice of Ontario, she practised in Toronto until her appointment in 1987 as Vice-Chair of the Liquor Licence Board of Ontario. The following year, she was appointed Chair and Chief Executive Officer until her appointment in 1995 as Assistant Deputy Attorney General and Secretary of the Ontario Native Affairs Secretariat. In 1997, she was named Deputy Attorney General for the province of Ontario and, in 2000, she became Secretary of the Cabinet and Clerk of the Executive Council of the Government of Ontario. She served in that capacity until her appointment to the Superior Court of Justice on November 21, 2002. APPOINTMENTS

Joining the Justices of the Peace Appointments Advisory Committee is Clint Calder.

Appointed to the board of the Ontario Health Quality Council is Gilbert Sharpe.

Susan Manwaring is the winner of the 2010 AMS/John Hodgson Award for excellence in Charity and Not-For-Profit law. The award presentation will take place on June 8th, 2010, at the OBA Conference Centre

On June 8th, 2010, Maureen Kenny will be presented with the OBA Ron Ellis Award, recognizing exceptional contributions and achievements in the field of workers’ compensation law. The OBA Award of Excellence in Alternative Dispute Resolution will be presented to the Honourable Mr. Justice Robert Beaudoin.

Bonnie Anne Tough has been announced as the winner of the 2010 OBA Award for Excellence in Civil Litigation. The awards presentation will take place this fall.

Joining the Ontario Review Board is the Honourable Madam Justice Tamarin Dunnet.

June 2010 | Briefly Speaking • En Bref

Snapshots

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Public Sector Awards

Insurance Award

Council, March 2010

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

President’s Message

Women in the Profession: Fostering an Inclusive Culture President Carole J. Brown

I was recently invited to speak at the all-day Law Society of Upper Canada’s Women Lawyers’ Symposium, Fostering and Celebrating Success - A Forum to Equip, Inspire and Support Women Lawyers in Private Practice, held in Ottawa as part of the LSUC’s Women Lawyers Leadership Initiative, sponsored by the LSUC and the County of Carleton Law Association. I spoke on a panel which comprised senior women lawyers in private practice on the topic Different Paths to Private Practice Success, which addressed the myriad options available to women in private practice. This caused me to reflect on my personal experience in the profession over the past 25 years. I graduated from law school in 1982, at a time when only 30 percent of the student population was female, and when only about 10 percent of women lawyers remained in private practice after 10 years. Today, while slightly more than 50 percent of law school graduates are women, the rate of women over men leaving private practice within the first 10 years is three to one. I was the first woman partner in my law firm. Statistics indicate that, today, the number of women in equity partnerships is approximately 16 to 18 percent across Canada. Thus, the general female population remains underrepresented in private practice.

The 1993 Canadian Bar Association Task Force report Touchtones for Change, Equity, Diversity and Accountability, authored by the Honourable Bertha Wilson, documented the barriers to entry and after entry of women into the practice of law. There has been much focus on the issue since that time. According to a survey conducted by the CBA, the top barriers are systemic or institutional, and include family/ parental commitments and obligations which continue to be borne principally by women. Change will ultimately require organizational and cultural shifts within law firms and the society-at-large.

Today, many law firms have increasingly developed initiatives to foster an inclusive culture in the legal profession. These include parental leave policies, flex-time policies, maternity leave buddy systems to ensure that women remain in the law firm loop, mentorship of women associates by senior women partners, and business development and leadership training programs.

The number of women in our profession in leadership roles today has increased. One simply has to look at the number of women on the bench, and in the position of Chief Justice at all levels of Court across our country. In the CBA, seven of the 13 Provincial and Territorial Branch Presidents this year are women. In Ontario, a woman is serving as President in each of four province-wide legal associations: the Advocates’ Society, Canadian Defence Lawyers Association, Ontario Trial Lawyers Association and the Ontario Bar Association. This is a first in the history of our Associations. Interestingly, NASA’s April shuttle launch also saw a historical first: four women astronauts on board. We have indeed come a long way, and there is much yet to come!

As I participated on my panel at the Women Lawyers Symposium and looked out at the 125 young women in the audience; as I look out upon our OBA Council meetings and the Council members in attendance, I realize that a sea-change is underway and that I am looking out on many women lawyers who will be the future leaders of our profession. It is important that we take part in ensuring that this sea-change continues by providing mentorship, networking opportunities, business and professional development and leadership opportunities to young women professionals entering the practice of law, to ensure that young women are given the opportunities and skills necessary to remain and advance in the practice and to have successful and fulfilling professionals lives. It is important that the profession generally, men and women alike, work together to ensure that systemic and institutional barriers to professional success are removed. The general public and our system of justice will be better served as a result. From left to right:

Sandra Forbes, the Advocates’ Society; Carole J. Brown, OBA

President; Judith Hull, President of OTLA; Susan Gunter, Criminal Defence Lawyers

June 2010 | Briefly Speaking • En Bref

Message de la présidente

Les femmes dans la profession juridique: à la recherche d’une culture d’intégration Carole J. Brown, Présidente J’ai récemment été invitée à prendre la parole à l’occasion du Women Lawyers’ Symposium (Symposium des avocates), un événement d’un jour organisé par le Barreau du Haut-Canada et intitulé Fostering and Celebrating Success - A Forum to Equip, Inspire and Support Women Lawyers in Private Practice (Favorisons et célébrons nos réussites : un forum pour outiller, inspirer et soutenir les avocates exerçant en cabinet privé). Ce symposium s’est tenu à Ottawa dans le cadre de l’initiative de leadership des avocates du Barreau du Haut-Canada, avec le concours du Barreau du Haut-Canada et de l’Association du barreau du comté de Carleton. En tant que membre d’un comité composé d’avocates expérimentées exerçant en cabinet privé, j’ai abordé le sujet des Différents parcours pour parvenir au succès en cabinet privé (Different Paths to Private Practice Success), en décrivant la multitude d’options s’offrant aux avocates qui exercent leur profession en cabinet privé. Cela m’a amenée à réfléchir sur mon expérience personnelle de plus de 25 ans dans la profession juridique.

J’ai reçu mon diplôme de la faculté de droit en 1982, à une époque où un maigre 30 % de la population étudiante était composé de femmes, et où environ 10 % des avocates travaillaient toujours en cabinet privé au bout de dix ans. Aujourd’hui, bien qu’un peu plus de 50 % des diplômés des facultés de droit soient de sexe féminin, la proportion des avocates qui quittent le secteur privé dans les dix premières années, par rapport à leurs homologues masculins, est de 3 pour 1. J’ai été le premier associé de sexe féminin de mon cabinet. Les statistiques démontrent qu’aujourd’hui, le pourcentage de femmes associées principales varie 16 à 18 % dans l’ensemble du Canada. On peut donc conclure que la population générale de sexe féminin est sous-représentée dans les cabinets privés. Le rapport de 1993 du Groupe d’étude de l’Association du Barreau canadien, intitulé Les assises de la réforme : égalité, diversité et responsabilité, rédigé par l’honorable Bertha Wilson, décrivait les obstacles auxquels les femmes doivent faire face au moment de l’entrée dans la profession juridique, et après. On a beaucoup discuté de la question depuis. Selon un sondage réalisé par l’ABC, les principaux obstacles sont d’ordre systémique ou institutionnel, et comprennent les obligations et les engagements familiaux et parentaux, toujours principalement assumés par les femmes. Pour que la réforme puisse s’opérer, des changements organisationnels et culturels au sein des cabinets d’avocats, ainsi que dans la société en général, seront nécessaires. Briefly Speaking • En Bref | June 2010

Aujourd’hui, de plus en plus de cabinets d’avocats mettent sur pied des initiatives destinées à favoriser une culture d’intégration dans la profession juridique. Celles-ci comprennent les politiques de congés parentaux, les politiques d’horaires variables, les systèmes de jumelage pour congés de maternité garantissant aux femmes un retour à leurs fonctions de départ au sein du cabinet, le mentorat d’associées par des associées plus expérimentées, ainsi que les programmes de développement d’entreprises et de formation en leadership.

Le nombre de femmes, dans notre profession, occupant des postes de direction est aujourd’hui plus élevé. Il suffit de jeter un coup d’œil au nombre d’avocates présentes en salle d’audience, ou encore au nombre de juges en chef de sexe féminin à tous les niveaux de tribunaux du pays. À l’ABC, cette année, sept des treize présidents de directions provinciales et territoriales sont des femmes. En Ontario, c’est une femme qui assume le rôle de présidente dans chacune des quatre associations juridiques provinciales suivantes : l’Advocates’ Society, la Canadian Defence Lawyers Association, l’Ontario Trial Lawyers Association et l’Association du Barreau de l’Ontario. Il s’agit là d’une première dans l’histoire de nos associations. Fait intéressant, le lancement d’une navette par la NASA en avril a également constitué une première historique, avec quatre femmes astronautes à bord. Nous avons donc fait d’énormes progrès, et ce n’est que le début! Lorsque j’ai siégé au comité du symposium des avocates et observé ses 125 jeunes participantes, et lorsque je pense aux séances du conseil de l’ABO et aux membres qui y assistent, je constate qu’il souffle présentement un vent de changement qui amènera de plus en plus d’avocates à occuper des postes de leaders dans notre profession. Nous devons absolument nous assurer que cette tendance persiste en apportant un mentorat, des occasions de réseautage, ainsi que des occasions de développement personnel, de développement professionnel et de leadership à de jeunes professionnelles débutant la pratique du droit, afin que ces jeunes femmes puissent profiter des possibilités et des compétences nécessaires pour demeurer et progresser dans leur cabinet, et jouir d’une vie professionnelle valorisante et enrichissante. Il est primordial que les membres de la profession, masculins comme féminins, veillent ensemble à l’élimination des obstacles systémiques et institutionnels à la réussite professionnelle. Le grand public, ainsi que notre système de justice, en bénéficieront grandement.

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 February 16 to April 9, 2010. If you’d like previous reports so you’re right-upto-date, let me know, and I’ll email them to you: emeehan@langmichener.ca.

APPEAL JUDGMENTS

for particular offences; rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth, he would prefer to remain ignorant. (emphasis by S.C.C.).

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CRIMINAL LAW: AIDING AND ABETTING; WILFUL BLINDNESS R. v. Briscoe (AB CA, Sept. 30, 08) (32912) April 8, 2010 The S.C.C. held: • •

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Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability; section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable the actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence; while it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one doing, or omitting to do, something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability the aider or abettor must have the requisite mens rea; specifically, the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime (emphasis by S.C.C.) wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused’s state of mind which must be undertaken to establish an aider or abettor’s knowledge wilful blindness does not define the mens rea required

CRIMINAL LAW: CREDIBILITY OF ACCUSED

R. v. Laboucan (AB CA., Jan. 6, 09) (33010) April 8, 2010 Here the S.C.C. held: •

• • •

the fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness’ testimony regard should be given to all relevant factors in assessing credibility the common sense proposition that a witness’ interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome (emphasis by S.C.C.).

CRIMINAL LAW: EXCLUSION OF EVIDENCE

R. v. Beaulieu (Que. C.A., April 27, 2009) (33181) Feb. 25, 2010

RCMP officers obtained a warrant authorizing them to inter-

June 2010 | Briefly Speaking • En Bref

Supreme Court of Canada Update cept the accused’s private communications and while installing listening devices in his car, found a hidden compartment containing a leather case with a loaded firearm. The evidence was included. As Justice Charron wrote (at p. 5) “…a [loaded] gun is reliable evidence”. CRIMINAL LAW: s.24 (1); SENTENCING; STATUTORY MINIMUMS R. v. Nasogaluak (Alta. C.A., November 14, 2007) (32423) Feb. 19, 2010

The S.C.C. held: • where state misconduct relates to the offence or the offender, the sentencing judge may properly take relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) • state misconduct which does not amount to a Charter breach but which impacts the offender may also be a relevant factor in crafting a fit sentence • where state misconduct does not relate to the offence or the offender, however, the accused must seek his or her remedy in another forum • a sentence reduction outside statutory limits does not generally constitute an “appropriate” remedy within the meaning of s. 24(1) • the possibility is not foreclosed that in some exceptional cases, a sentence reduction outside statutory limits may be the sole effective remedy for some particularly egregious form of misconduct by state agents

CRIMINAL LAW: CHILD PORN; SEARCH WARRANTS

R. v. Morelli (Sask. C.A., May 15, 2008) (32741) March 19, 2010 On the particular facts of this case, the S.C.C. held there was “no reasonable and probable grounds for the search and seizure of the … computer”, and “In the absence of this illegally obtained evidence, the [accused] could not reasonably have been convicted”.

PROFESSIONS: “ORDERING COUNSEL TO WORK FOR FREE” R. v. Cunningham (YK. C.A., May 26, 2008) (32760) March 26, 2010

If a lawyer asks to withdraw because of non-payment of fees, courts can refuse, by considering the following nonexhaustive list of factors: • is it feasible for the accused to represent themselves • other means of obtaining representation • impact on the accused from delay in proceedings, particularly if the accused is in custody • conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time • impact on the Crown and any co-accused • impact on complainants, witnesses and jurors • fairness to defence counsel, including consideration of the expected length and complexity of the proceedings • history of the proceedings, e.g. if the accused has changed lawyers repeatedly

Briefly Speaking • En Bref | June 2010

• •

t he Act and Regulations require that the environmental assessment track be determined according to the project as proposed it is generally not open to a federal authority to change that level.

TORTS 101S

Fullowka v. Pinkerton’s of Canada Ltd. (NWT C.A., May 22, 2008) (32735) Feb. 18, 2010

During a strike at a mine, the mine owner decided to continue operating the mine with replacement workers. The strike degenerated into violence, there were attacks on private security guards who were unable to control the situation, and the mine owner turned to Pinkertons for security services who had at one point 52 guards on site. Mr. Warren evaded security, entered the mine, and while underground, planted an explosive device which killed nine miners. Mr. O’Neill was among the first on the scene and discovered dismembered bodies, including a close friend. The S.C.C. held: • the security firm and government owed a duty of care, but had not breached that duty • the trial judge’s findings of liability against the union cannot be sustained • the claims of Mr. O’Neil should have been dismissed • Pinkerton’s and the government did owe a duty of care to the murdered miners to take reasonable steps to prevent Mr. Warren’s intentional wrongful act, but did not breach that duty. TORTS 101 (AGAIN): DUTY OF CARE; NEGLIGENCE; DOCTRINE OF PARENS PATRIAE; VICARIOUS LIABILITY; FIDUCIARY DUTIES

Reference re Broome v. Prince Edward Island (PEI C.A., January 22, 2009) (33051) April 1, 2010

The S.C.C. held (in summary) as follows: • the first step under the Anns/Kamloops test is to ask whether the relationship discloses sufficient foreseeability and proximity to establish a prima facie duty of care; if so, the analysis moves to the second step, whether there are residual policy considerations, transcending the relationship between the parties, that negate the existence of such a duty • proximity is about whether the relationship is sufficiently close and direct to give rise to a legal duty of care, considering such factors as physical closeness, expectations, representations, reliance and the property or other interests involved • whether sufficient proximity exists on the facts of this case turns mainly on the role of the Province in relation to this orphanage • the funding relationship between the Province and the orphanage in this case does not support the existence of sufficient proximity • the parens patriae power of the courts is conceived of as a protective jurisdiction which confers the power to act, and is commonly exercised by a superior court on a caseby-case basis as a matter of judicial discretion; it is not generally thought of as a power of the executive branch of government

Supreme Court of Canada Update •

legislative authority is not enough to impose vicarious liability.

LEAVES TO APPEAL GRANTED ABORIGINAL LAW: MÉTIS

Is the Alberta Métis Settlements Act unconstitutional by prohibiting individuals with Indian status obtaining Métis settlement membership. Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development) and the Registrar, Métis Settlements Land Registry v. Barbara Cunningham, et al. (Alta. C.A., June 26, 2009) (33340) March 11, 2010 BANKING: FRAUDULENT TRANSACTIONS

As between two innocent parties to a series of fraudulent transactions, who is entitled to funds recovered.

John Schertzer, Steven Correia, Joseph Miched, Nebojsa Maodus and Raymond Pollard v. Her Majesty the Queen (Ont. C.A., October 28, 2009) (33519) March 11, 2010 CRIMINAL LAW: HOMICIDE

In the context of a victim being brutally assaulted, then run over by a car, does the evidence here link the accused to the homicide.

Her Majesty the Queen v. Terrence Sinclair (Man. C.A., July 15, 2009) (33359) April 1, 2010 DEFAMATION: INTERNET HYPERLINKS

Can hyperlinks on a website be defamatory

Wayne Crookes and West Coast Title Search Ltd. v. Jon Newton (B.C.C.A., September 15, 2009) (33412) April 1, 2010 FAMILY LAW: BANKRUPTCY

How is the bankruptcy of one spouse to be treated in a divorce.

I Trade Finance Inc. v. Bank of Montreal (Ont. C.A., August 18, 2009) (33394) April 1, 2010

Susan Wilma Schreyer v. Anthony Leonard Schreyer (Man. C.A., August 26, 2009) (33443) April 1, 2010

Members of the Toronto Police Force were charged in January 2004 with a series of offences, including attempt to obstruct justice. On consent of the parties, the suggested target trial date was January 2008. By the end of December 2007, it became clear the pre-trial motions would not be completed in time to start the trial on that date, and the trial was rescheduled. Is this a constitutionally impermissible delay.

When can a trade-mark be expunged on the ground it is confusing, as to date of registration.

CRIMINAL LAW: DELAY

26 Briefly Speaking (Multi-tool)

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TRADE-MARKS: EXPUNGMENT

Masterpiece Inc. v. Alavida Lifestyles Inc. (Fed. C.A., October 13, 2009) (33459) April 1, 2010 Eugene Meehan, Q.C. is the chair of the Supreme Court Practice Group with Lang Michener LLP.

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June 2010 | Briefly Speaking • En Bref

spotlight on sections

Taxation Law Martin Sorensen

he first Canadian income tax legislation, the Income War Tax Act, was enacted in 1917 as a temporary measure to raise funds for Canada’s participation in the First World War. The whole Act comprised 11 pages and 24 sections. Nearly a century later, this temporary tax lives on in the substantially larger form of the Income Tax Act (Canada) and has been supplemented by a host of new tax measures (including sales, capital, payroll and property taxes) at virtually every level of government. Today, it is safe to say that tax is one of the most complex and fast-changing areas of Canadian law. To keep pace, the OBA Taxation Law Section has been busy trying to make the area a little easier to understand and apply, both for specialists and non-specialists. While we have certainly not covered everything, here is a brief summary of what we have been doing over the past 12 months. Tax programs

The Section held a full range of programs on various tax-related topics, such as: June 3, 2009 Year-End Address by the Honourable Mr. Justice Marshall Rothstein, including valuable perspectives from an eminent and respected tax jurist.

September 10, 2009 While You Were Away: Summer 2009 Developments, including presentations on new U.S. reporting requirements and tax developments involving Canadian charities.

November 5, 2009 Senior Practitioners’ Panel on the Taxation of Trusts, including a panel of experienced tax practitioners dealing with important new tax jurisprudence. December 3, 2009 A Holiday Potpourri, including a discussion of upcoming tax avoidance cases, international tax planning and recent pronouncements of the Canada Revenue Agency.

February 25, 2010 Mid-Winter Update, including a discussion of recent cases, the activities of the Joint CBA-CICA Committee on Taxation and the “LGT Scandal”. April 21, 2010 Budget Round-Up, including a discussion of recent important proposals from the 2010 Federal Budget and a primer on the coming GST/HST changes. Special thanks to all the presenters, as well as Robert Kepes, Paul Stepak and Tricia Thompson of the Programming Committee for their hard work in putting the programs together. Briefly Speaking • En Bref | June 2010

As for future programs, don’t miss our 2010 year-end program scheduled for June 10, 2010, featuring Justice Robert Hogan of the Tax Court of Canada. It is sure to be another great event. Government Relations

We made several submissions on recent government initiatives, including a submission in April 2009 to the Ontario Minister of Finance regarding the continued use of retroactive tax legislation. Also in 2009, the Section participated in a submission regarding the impact of the proposed new Ontario Harmonized Sales Tax on access to justice and to the profession. Many thanks to Timothy Fitzsimmons, Robert Kepes, Robert Kreklewetz and James Murdoch for their leadership and work on these important issues. Tax Newsletter

Over the last 12 months we have published four issues of our Tax Newsletter, including 22 articles on topics ranging from the surrogatum principle to the impact of the new Canada-US Tax Treaty on “hybrid” entities. Thanks to the hard work of our numerous contributors and newsletter editors (including Sabina Mexis, Mark Barbour, David Chodikoff, Milan Legris and Janice Vohrah) these articles continue to reflect some of the most insightful and timely tax commentary available. The Next 12 Months

Here is a bold prediction for the next 12 months. The temporary tax rules enacted nearly a century ago will not be repealed. But there will be new legislation, new proposals, new administrative pronouncements and new case law. All will require further study, analysis and attention. The Taxation Law Section is committed to staying on top of these new developments and helping the OBA membership deal with them. Martin Sorensen is a Partner at Bennett Jones LLP and is the chair of the OBA’s Taxation Law Section.

LSUC Update

Law Society’s Retention of Women Initiatives Continue to Roll Out Laurie Pawlitza

wo years ago, Convocation approved initiatives designed to empower women to take charge of their careers and to help them maintain the viability of their small firms.

Together with my co-chair, Tom Conway, we continue to roll out the recommendations of the Law Society’s Retention of Women in Private Practice Working Group. Implementation of the working group’s nine recommendations kicked off in November 2008, with the launch of the Justicia Project. To date, 57 medium- and large-sized law firms have committed to implement the goals of Justicia by monitoring firm gender demographics, developing parental leave and flexible work guides, creating networking and business development opportunities, and providing concrete opportunities for mentoring and developing leadership skills for women. Implementing Justicia’s goals has been a collaborative effort, with both benchers and private practitioners leading the implementation. As firms of different sizes have different concerns, participating firms have been divided into three groups. Together with Kirby Chown, I lead the over 100 lawyer firm group. Linda Rothstein and Megan Shortreed lead the 25-100 lawyer group and my co-chair, Tom Conway and Heather Williams, both of Ottawa, lead the out of GTA group. The participating firms meet regularly to work through the issues, exchange ideas and establish guidelines to move forward. The firms then implement the goals in a way that fits within their own firm structure.

In addition to creating a template for gender data collection and a guide for parental leave, participating firms have also developed checklists for “ramping down” to parental leave and “ramping up” after the leave. Justicia firms are now working on the guide for reduced hour arrangements and on the business case for the viability of such arrangements.

The work of Justicia will also be enhanced by the annual results the Law Society now receives from the Change of Status Survey, a survey conducted with lawyers who have moved from one “status category” of practice to another. The results of the 2009 study will be released this spring and will give us considerable information about what influences lawyers to change their work environment.

In March 2009, the Law Society also launched the Parental Leave Assistance Program (PLAP) to assist lawyers in small firms and sole practices. PLAP helps cover expenses associated with maintaining a practice during a lawyer’s parental or adoption leave by providing a monetary benefit for up to 12 weeks. To qualify, male or female lawyers must be in a firm of five or fewer and have no access to other benefits. The program has been a resounding success - to date, 57 applications have been approved. In May 2009, the Lawyers’ Contract Registry was created. Its purpose was to help lawyers maintain their practice during a leave of absence. This free resource is designed to provide access to short-term assistance by allowing practitioners to hire a contract lawyer while they are away on vacation or leave, busy with a trial, or require assistance with large files. The most recent initiative is the Women’s Online Resource Centre (WORC), which will be up and running this summer. WORC is designed to give busy female practitioners professional and practical information, including practice management tips, and information on mentoring and on Justicia policies.

The first annual Women’s Symposium was held on February 5, 2010 in Ottawa. Its purpose was to foster and support the success of women in practice. Over 145 participants attended, and our keynote speaker was the Honourable Justice Louise Charron. My co-chair, Tom Conway and I are delighted with the progress of the Retention of Women’s recommendations to date. More information is available at www.lsuc.on.ca or you can contact the Resource Centre at 1-800-668-7380, ext. 3315, or 416-947-3315. We look forward to hearing from you.

Laurie Pawlitza, Co-Chair of the Retention of Women in Private Practice Working Group.

June 2010 | Briefly Speaking • En Bref

Mise à jour de LSUC

Les initiatives du Barreau du Haut-Canada en matière de rétention des femmes continuent à être mises en œuvre Laurie Pawlitza Il y a maintenant deux ans, Convocation a approuvé des initiatives visant à permettre aux femmes de prendre les commandes de leur carrière et à les aider à maintenir la viabilité de leurs cabinets d’avocats de petite taille.

En collaboration avec mon co-président, Tom Conway, nous continuons à mettre en œuvre les recommandations du Groupe de travail sur la rétention des femmes en pratique privée du Barreau du Haut-Canada. La mise en œuvre des neuf recommandations du groupe de travail s’est amorcée en novembre 2008 avec le lancement du projet Justicia. À ce jour, 57 cabinets d’avocats de petite et moyenne taille se sont engagés à adopter les objectifs de Justicia en surveillant les données démographiques en fonction du sexe, en élaborant des congés parentaux et des normes d’exécution souples, en créant des occasions de réseautage et de développement des affaires, et en fournissant des possibilités concrètes de mentorat et d’acquisition de compétences en leadership pour les femmes.

L’adoption des objectifs de Justicia a été un effort commun, tant les conseillers du Barreau que les avocats d’exercice privé ayant dirigé la mise en œuvre. Les cabinets d’avocats de différentes tailles ayant des préoccupations distinctes, ils ont été répartis en trois groupes. En collaboration avec Kirby Chown, je suis à la tête du groupe des cabinets ayant plus de 100 avocats. Linda Rothstein et Megan Shortreed s’occupent quant à elles du groupe des cabinets de 25 à 100 avocats, tandis que mon co-président, Tom Conway, et Heather Williams, tous deux d’Ottawa, sont à la tête du groupe de la région du Grand Toronto. Les cabinets participants se rencontrent régulièrement pour faire progresser ces questions, échanger des points de vue et établir des lignes directrices pour aller de l’avant. Les cabinets mettent ensuite en œuvre les objectifs d’une manière convenant à leur structure.

En plus de créer un modèle de collecte de données liées au sexe ainsi qu’un guide pour les congés parentaux, les cabinets participants ont également élaboré des listes de vérification pour « ralentir » à l’approche du congé parental et « accélérer » au sortir de celui-ci.

Les cabinets d’avocats participant au projet Justicia travaillent à présent à l’élaboration du guide concernant les accords de réduction des heures, et à l’analyse de rentabilité au sujet de la viabilité de tels accords. Le projet Justicia sera également mis en valeur par les résultats du Sondage sur le changement de catégorie, que le Barreau du Haut-Canada reçoit actuellement. Ce sondage a été réalisé auprès des avocats qui sont passés d’une catégorie d’exercice à une autre. Les résultats de l’étude de 2009 Briefly Speaking • En Bref | June 2010

seront dévoilés ce printemps. Ils nous permettront d’en apprendre davantage sur ce qui pousse les avocats à changer leur milieu de travail. En mars 2009, le Barreau du Haut-Canada a également lancé le Programme d’aide au congé parental (PACP) pour aider les avocates et les avocats travaillant seuls ou au sein de petits cabinets d’avocats. Le PACP contribue à couvrir les dépenses associées au maintien de l’exercice du droit au cours d’un congé parental ou d’un congé pour cause d’adoption en fournissant un avantage monétaire pendant une période maximale de 12 semaines. Pour être admissibles, les avocates et les avocats doivent travailler au sein d’un cabinet de cinq avocats ou moins, et ne pas avoir droit à d’autres avantages sociaux. Ce programme a connu un succès retentissant. Jusqu’à maintenant, 57 demandes ont eté approuvées.

Le Registre des avocats à contrat a été créé en mai 2009. Il vise à aider les avocats à continuer à exercer leur profession au cours d’un congé. Cette ressource gratuite est conçue pour donner accès à une aide à court terme en permettant aux avocats de retenir les services d’un avocat à contrat lorsqu’ils sont en vacances ou en congé, occupés par un procès, ou encore lorsqu’ils ont besoin d’aide avec des dossiers importants. La plus récente initiative est le Centre de ressources pour les femmes en ligne (Women’s Online Resource Centre , WORC), dont le lancement est prévu cet été. Le WORC a été conçu pour permettre aux professionnelles en exercice du droit d’obtenir des renseignements, dont des conseils de gestion de leur exercice du droit, et de l’information sur le mentorat et les politiques du projet Justicia.

La première édition annuelle du Symposium des femmes s’est déroulée le 5 février à Ottawa. Son objectif consistait à favoriser et à appuyer la réussite des femmes en exercice du droit. Plus de 145 personnes y ont participé. Notre conférencière d’honneur était Madame la juge Louise Charron.

Mon co-président, Tom Conway, et moi-même sommes enchantés de l’évolution jusqu’à présent des recommandations concernant la rétention des femmes. De plus amples renseignements sont disponibles à l’adresse www.lsuc.on.ca. Vous pouvez également communiquer avec notre Centre de ressources en composant le 1-800-668-7380, poste 3315, ou le 416-947-3315. Nous attendons de vos nouvelles.

Laurie Pawlitza, co-présidente du Groupe de travail sur la rétention des femmes en pratique privée

Advocacy in Action

Pension Reform and Legal Aid in the Spotlight Finance Committee Counts on Pension Reform Advice from OBA Pension reform has become an important issue in recent years and has caught the attention of the Legislative Assembly of Ontario and the provincial government. The Pension Benefits Amendment Act, 2010 will, if passed, deliver some important changes to the way pensions are handled and managed in Ontario. To ensure that the legislation addresses current problems and accomplishes its objectives, the OBA’s Pensions and Benefits Section prepared a detailed submission on the Bill and delivered it to the Legislative Committee on Finance and Economic Affairs on Thursday, April 1st. Representing the OBA were Mitch Frazer, Andrea Boctor and James Pierlot. They addressed three main issues: • • •

Trust law and pension asset transfers Surpluses upon termination of a plan

Multi-employer pension plans and partial windups.

As of April 27th, the bill has been reported back to the House and ordered for Third Reading.

To read the full OBA Submission or Committee Hansard, please go to www.oba.org/submissions

Current Working Groups: The OBA has formed a number of working groups to respond to the following issues: • Administrative Law: Administrative Justice for People with Capacity Issues • LawPro Maternity Leave • Business Law subcommittees • FSCO Priorities • Joint & Several Liability (Law Commission of Ontario Consultation) • Creditors Relief Act • Mandatory Mediation Further information: Louise Harris at lharris@oba.org

Recent OBA Submissions: •

Law Society’s Professional Regulation Committee’s Rule 6.03(9)

•

Ministry of the Environment’s Proposed Legislative Framework for Modernizing Environmental Approvals

•

OBA Submission on Bill 236, Pension Benefits Amendments Act To view any of the above submissions, please go to www.oba.org/submissions

OBA Town Hall Meeting on Legal Aid Ontario

“OBA Members Mitch Frazer, James Pierlot and Andrea Boctor (Left to Right) deliver submission on Bill 236, The Pension Benefits Amendment Act, 2010 to the Standing Committee on Finance and Economic Affairs.”

On May 5th, the OBA held a Town Hall Meeting on the transformations currently underway at Legal Aid Ontario. The meeting invited members of the profession to hear directly from the Legal Aid Ontario’s VP of Policy and External Relations David McKillop. To ensure maximum participation of OBA members, the meeting was available as a live interactive webcast.

June 2010 | Briefly Speaking • En Bref

advocacy in action Members were able to raise a number of serious issues with Mr. McKillop throughout the meeting. Topics covered included changes to tariff rates, regional office relocations and alignment within the broader context of the justice system. Members who couldn’t attend can view the video of the meeting on the OBA website (www.oba.org).

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Briefly Speaking • En Bref | June 2010

Queenâ&#x20AC;&#x2122;s Park update

Meet your colleagues...

The Lawyers of the Legislature

f the 107 MPPs currently sitting in the 39 th Parliament of Ontario, only 17 of those members are lawyers, easily dispelling the myth that Parliament is dominated by the legal profession. By party they are 12 Liberals, three Progressive Conservatives and two New Democrats.

Liberal Caucus

Dalton McGuinty

Chris Bentley

David Zimmer

Premier MPP Ottawa South

Attorney General Minister of Aboriginal Affairs MPP London West

Parliamentary Assistant to the Attorney General MPP Willowdale

Greg Sorbara

Bob Chiarelli

John Gerretsen

MPP Vaughan

MPP Ottawa West-Nepean

Minister of the Environment MPP Kingston and the Islands

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

Update Queen’s Park

Laurel Broten

Margarett Best

Monique Smith

Minister of Children and Youth Services Minister Responsible for Women’s Issues MPP Etobicoke-Lakeshore

Minister of Health Promotion MPP Scarborough-Guildwood

Minister of Intergovernmental Affairs MPP Nipissing

Lorenzo Berardinetti

Yasir Naqvi

Madeleine Meilleur

Parliamentary Assistant to the Minister of Labour MPP Scarborough Southwest

Parliamentary Assistant to the Minister of Revenue MPP Ottawa Centre

Minister of Community and Social Services Minister Responsible for Francophone Affairs MPP Ottawa-Vanier

Progressive Conservative Caucus

Gerry Martiniuk

Christine Elliott

Norm W. Sterling

MPP Cambridge

MPP Whitby-Oshawa

MPP Carleton – Mississippi Mills

New Democratic Caucus

Howard Hampton

Peter Kormos

MPP Kenora-Rainy River

MPP Welland

Briefly Speaking • En Bref | June 2010

Behind the bench

Behind the bench Introducing you to Ontario’s Judiciary Justice Todd Archibald Susannah B. Roth One thing becomes clear soon after meeting Mr. Justice Todd Archibald: he truly relishes the challenges of being a Superior Court judge. What he enjoys most, he says, is wrestling with the complex legal issues that come before him, and threading the facts of each case through these issues, as well as helping people understand the law and work through their legal troubles. Clearly he enjoys the versatility that is expected of him. “You have to be on your intellectual toes the whole time” he says.

Justice Archibald brings a varied background to the bench. He was called to the bar in 1979, received his LL.M. in 1986 and was certified as a Specialist in Environmental Law by the Law Society of Upper Canada in 1997. As an Assistant Crown Attorney and then a Senior Assistant Crown Attorney for nine years, he spent most days in court. Although he wanted to be a criminal defense lawyer, having grown up in the 60s idolizing Perry Mason, he says that working for the Crown is invaluable to anyone interested in criminal law or wanting to become a proficient courtroom advocate. In 1989, he moved to the City of Toronto as a Senior Solicitor for the Legal Department handling civil files, ranging from personal injury and malicious prosecution claims to labour arbitrations and environmental issues. This led him to private practice with Gardiner Roberts LLP in 1990, practising environmental and criminal law. Later moving to (now) Borden Ladner Gervais LLP, he was a partner for eight years with a varied practice including commercial and civil litigation, criminal defense and environmental law and chaired the Regulatory and Criminal Law Group. An OBA member for many years, Archibald was a Council member and also sat on the Continuing Legal Education committee and the Editorial Board of Briefly Speaking, as well as chairing numerous civil litigation and environmental law conferences and seminars.

He has been an Adjunct Professor at Osgoode Hall Law School since 2000, teaching White Collar Crimes and Regulatory Offences as part of the Criminal LL.M. program and Advanced Trial Advocacy with Kenneth E. Jull as part of the Civil LL.M. program, and last year received an award for teaching excellence. He has channeled his considerable 16

academic interests into several texts; primarily the Annual Civil Litigation Review, which he started and continues with his co-editor Justice Randall Scott Echlin, and Regulatory and Corporate Liability From Due Diligence to Risk Management, which he co-authors with Kenneth E. Jull and Kent W. Roach; additionally he co-authors the annual Ontario Superior Court Practice.

To keep himself challenged, Archibald is an avid tennis player and a “mediocre” golfer. He also enjoys escorting his twin 14-year old daughters to various sporting events, including ice and field hockey; visits with his eldest daughter, currently studying at The University of Western Ontario and deciding between medicine and law (no comment on which her father prefers); and spending time with his wife, to whom he has been happily married for over 20 years. Susannah B. Roth, O’Sullivan Estate Lawyers

Justice Gertrude Speigel Alastair Clarke During World War II, Justice Speigel lost numerous family members to the gas chambers at Auschwitz. Her mother, a Holocaust survivor, weaned Justice Speigel on stories of courage and self-sacrifice. In one story, her mother recounted the exceptional generosity of a kind German guard and how she, in turn, attempted to return the kindness despite the circumstances. From this, Justice Speigel passionately describes the importance of judging people based on their individual actions, not based on their associations.

Justice Speigel’s focus on individuals is apparent in how she conducts her courtroom. She has earned a reputation for spending as much time as needed to hash out the issues presented. “I remember once we were at it until 7am.” Even as a veteran judge, she continues, if necessary, to conduct pre-trials until after midnight. “It’s all about momentum. If the parties are making progress, the hour is not important.” Tucked in the side drawer of her desk, Justice Speigel saves thank-you notes from litigants who have passed through her courtroom. One card holds special meaning for her: a note from a former car dealership owner and his wife, who left her courtroom without their house, but thanked her for giving them suffiJune 2010 | Briefly Speaking • En Bref

behind the bench cient time and attention that they walked out with their dignity intact. Justice Speigel’s goal is to ensure the integrity of the legal process and to make sure litigants understand that process even if they may not be happy with the result.

Even as a mother of two young children, Justice Speigel continued to devote herself to the administration of justice. If her pre-trials continued into the evening, her kids “could always call. I made sure they always had my number.” At age seven, Justice Speigel’s daughter spent one day crouched under the desk during a matrimonial matter. When suddenly, after a few hours, the child appeared from under the desk, the husband asked the child’s opinion of the case. “You married her! Now you have to deal with her!” It seems Justice Speigel’s daughter took an interest in the law: she is now a lawyer practising in New York City. Conversely, her son eschewed the law, but spends his time protecting our rights and security.

Outside the courts, Justice Speigel and her husband, past OBA President Jonathan Speigel, love to travel. Through the OBA’s annual Foreign Conference, they have met with lawyers and judges from many countries including, among others, South Africa, Turkey, Tunisia, Bhutan, and Burma (Myanmar). The trips are an excellent way to get to know foreign judicial systems as well as to bond with other members of the Ontario Bar. “We need to remember how lucky we are here in Canada. When someone complains to me that the system is not fair, I ask them, ‘where on earth is there a better system?’” As a world traveller and a fixture in the court system for more than 30 years, Justice Speigel knows what she is talking about. Alastair practises immigration law and poverty law at York Community Legal Services

Justice of the Peace Mary Ross Hendriks Louise Harris Her Worship Mary Ross Hendriks has been a rights activist her whole life, starting in nursery school when she complained about the treatment of students. Her articles were at Sneath Wilkins in insurance defence. From there she went on to the boutique firm of Eversley and Sui, as a litigator doing corporate and securities work. That led to a decade in the regulatory policy realm. For six years she served as a Vice Chair of the Human Rights Tribunal and in 2006-07 she was cross appointed to the Social Benefits Tribunal

“We move around a great deal, perhaps more than other benches do,” says Ross Hendriks. Sitting in Toronto means sitting in the courts at Old City Hall, 311 Jarvis St. for youth bail, College Park, Centre Avenue and Edward Street, 1000 Finch, 2201 Finch W, 2700 Eglinton W. and 1530 Markham Road (POA) and 1911 Eglinton East (Criminal) in Scarborough. “Certainly, our colleagues in Northern Ontario have considerably greater distances to travel, but we also get our fair share of “windshield time”, she adds.

An increasing number of lawyers are applying to the Justice of the Peace bench, many bringing non-traditional uses of their law degree. The composition of the Justice of the Peace bench remains a microcosm of society, with government employees, teachers, academics, former police officers, business people and community activists from diverse backgrounds. Ross Hendriks is effusive in her praise for the solid grounding offered to her on her Justice of the Peace appointment, citing Senior Regional Justice of the Peace Diane McAleer’s inclusiveness and generosity of time, and Justice of the Peace Gary McMahon’s mentorship.

“We received excellent training, which is ongoing, and includes everything from time management to practical advice on list management and real life examples of how to apply the law. Our mentors and other senior members of our bench make themselves available regularly to provide assistance and counsel,” adds Ross Hendriks. “Every day is an opportunity to keep honing my skills and participating in the adjudicative world, which I love.”

An OBA member since she was a law school student, she continues to maintain her membership. “I sat on OBA Council and was the chair of the Equal Opportunity Committee. I continue to attend section programs, such as criminal law and constitutional and human rights as a form of CLE. The Feminist Legal Analysis Section’s programs keep me up to date on other important issues. You can become isolated. This is a great way of staying in touch with both issues and people,” she adds. When not working, Ross Hendriks and her husband John and 16 year-old son Michael like to ski in the winter and vacation in Ontario’s cottage county in the summer. “I’m surrounded by family fisherman,” says Ross Hendriks, “so what can be more peaceful than being out in a boat on the water with the sun shining?”

Her Worship’s passion for the rule of law, her background and life experiences and commitment to life-long learning make her a valuable addition to the Justice of the Peace bench in Toronto.

www.ontariocourts.on.ca

In 2007, she was appointed as a Justice of the Peace in Toronto, in the first group of 37 under the arms length process begun by former Attorney General Michael Bryant. Briefly Speaking • En Bref | June 2010

legal aid ontario update

Legal Aid Ontario improves services for clients and lawyers Legal Aid Ontario (LAO) has launched a “modernization strategy” to streamline administration, improve client services, provide increased value for taxpayers, and support Ontario’s justice system reforms. As part of this strategy, which supports the organization’s legislated mandate to provide highquality and cost-efficient legal aid services, LAO is also integrating technology to modernize all aspects of legal aid. Improvements for clients

LAO’s services now help clients get the “right service at the right time”. LAO’s popular toll-free number (13,000 callers in February 2010), courthouse locations, and revised website are now the primary access points for a client service. Vulnerable clients (i.e. domestic violence, mental health) get priority assistance at any point of contact with Legal Aid Ontario. Legal aid: toll-f ree

Clients can access a full-range of legal aid services toll-free over the phone in 120 languages, including summary legal advice for family and criminal law matters, and referrals certificate applications Cour t-based ser vices

By the end of April 2010, clients will be able to have access to services such as filling out certificate applications in more than 40 courthouses across Ontario. These courthouses hear more than 80 percent of all criminal matters in Ontario, and in 2009 more than 13,000 people received assistance through a courthouse location Improved website

LAO’s revised website is more user-friendly and provides detailed information on legal aid services. Since launching in late November 2009, the site has had more than a quarter million visitors, and over one million page views. New payment methods

LAO recently introduced new payment methods with the goal of reducing the number of certificates that are cancelled for non-payment of contribution agreements. Clients can now make payments at bank branches, and through telephone and online banking. 18

Improved f inancial test ing LAO is making it easier to understand financial eligibility criteria by reducing the number of documents required to apply for legal aid. A new income-based eligibility test, which is expected to improve client services and fast track the process where possible, is currently being piloted across the province. Working with lawyers

LAO recognizes the significant contribution of the 4,100 plus private lawyers who provide legal assistance across Ontario, helping low-income Ontarians access good quality legal services. The Memorandum of Understanding (MOU) between the Ministry of the Attorney General (MAG), LAO and the Criminal Lawyers’ Association (CLA), signed in January 2010, lays the groundwork for each of these organizations to work together. This includes a new complex case rate, block fees, a commitment to support LAO’s modernization strategy and an increase to lawyers’ hourly fees by an average of five per cent annually for the next seven years. Block fees

The introduction of block fees on May 1, 2010 for the appropriate resolution of some of the most common summary criminal charges will expedite payments and bring more clarity, transparency, and fairness to LAO’s billing rules. For lawyers accepting criminal certificates, block fees ensure financial certainty and help their bottom line. The block fees roll-out for the most common summary matters is the first phase of block fee deployment for criminal matters. LAO is committed to consulting with the CLA and criminal lawyers over the course of the year to develop recommendations and amendments for the second phase, which will expand block fees to other summary and many indictable criminal charges. LAO will also work with the CLA and others to monitor and update quality standards or requirements based on the lessons learned from the first phase of the block fee program. New complex case rate

Another significant component of the MOU is the implementation of the Code/ Lesage recommendation to create enhanced fees for highly qualified lawyers who work on the most complex major criminal cases. The new complex rate is not tied to a specific list of charges, as lawyers can apply on a case-by-case basis for consideration. An outline of the June 2010 | Briefly Speaking • En Bref

legal aid ontario update Complex Case Rate criteria and considerations is available on LAO’s website.

•

Funding for Duty Counsel program in 2008/9: $38 million.

Incor porat ing technology to make doing legal aid work easier

Private Bar

LAO is enhancing e-certificate transactions as part of its ongoing efforts to modernize the way it does business, and make legal aid work easier for lawyers. Online billing and other tools such as Online Lawyer Acknowledgement speed up payments and expedite the certificate process. New features allow lawyers to view certificates waiting to be acknowledged, and see approved amendments and authorizations online.

Clinic Program Funding:

LAO’s restructuring will continue throughout the coming year with new innovations and improved services for clients and lawyers. The future of Legal Aid Ontario will be based on the principles of more tailored client services, less costly infrastructure and greater oversight and support for service providers. LAO Fast Facts: District Model • • • •

LAO’s “district model” restructures the traditional model of 51 separate offices into nine larger districts. District offices will improve the coordination and accountability of legal aid services, including supporting legal aid lawyers, managing local panels, and building relationships with justice system partners. The district model improves the coordination and accountability of legal aid services. LAO is working on a number of area committee reforms, including centralizing area committee functions within each district, so that appeals are processed quickly and more consistently

Certificates • • •

Year

In 2008-09 LAO issued 117,169 certificates Average cost of regular criminal certificate: $1,675.00 Average cost of regular family certificate: $1,826.00

2008- 09

Certificate type

Certificates issued

Budget (000)s

Criminal

68,453

$102,901

Family

30,107

$50,755

Immigration 12,706 and Refugee

$17,701

Other civil

$6,450

5,903

•

In 2008/9 Legal Aid Ontario settled more than 215,000 accounts for more than 4,100 private lawyers who billed for work completed on behalf of legal aid clients.

Year

Budget (000)s

2008/09

$ 67,538

LAO funds 77 community legal clinics across the province of Ontario, and six Student Legal Aid Services societies. C lient S ervices • • • • • • • •

LAO has introduced a simplified online application process (SOAP) that reduces the time to complete an application by 62 percent. Sixty-three percent of clients receive a same day decision on their legal aid application, allowing them to move forward with their legal matters. Clients can access a full range of legal aid services over the phone, including applying for certificates. In February 2010, almost 13,000 people contacted LAO toll-free for legal aid assistance. LAO has increased online information and resources by redesigning and re-launching its website (http:// www.legalaid.on.ca). Since launching the site in late November 2009, the site has had almost 257,000 visitors, and over a million page views. Legal Aid Ontario is providing more direct services in courthouses across the province. This includes increasing the number of LAO offices in courthouses, and enhancing the duty counsel program. As of April 2010, there were more than 40 Legal Aid Ontario courthouse offices in locations across Ontario where clients can access our services. These courthouses hear more than 80 percent of all criminal matters in Ontario.

D uty Counsel • •

Duty counsel lawyers provide frontline advice, information, and representation in every courthouse in Ontario, including 33 remote and fly-in locations. In 2009, duty counsel lawyers assisted with 854,146 matters.

Briefly Speaking • En Bref | June 2010

The Northern Circuit

Court in Kashechewan Nancy E. Cooper

ashechewan is a First Nations community that rests uneasily on the shores of James Bay. A dike surrounds the village, expressly to keep the cold waters at bay in the spring. The population of this small community hovers around 1,100. Its people regularly struggle against catastrophes, both as individuals and as a community. Their troubles come in the form of contaminated waters, floods, s u b s t a n c e a n d a l c o h o l a b u s e , and s u i c i d e s . A b o u t e v e r y t h r e e m o n t h s , w e l a n d h e r e i n o u r c h a r t e r aircraft, not unlike the Indian agents of decades past.

January 27 - Advance Day - 10:15 AM After a 90-minute flight from Timmins, our plane bounces to a grating stop on the gravel airstrip in Kash. A motley crue - four defence counsel, one Crown and one community legal worker - peers outside for signs of the pre-arranged ride into the village. We muse out loud about the likelihood of freezing our knackers off. The conversation turns to the length of tomorrow’s docket—over 300 entries on the adult docket alone. We’re amazingly upbeat, considering the difficult work that lies ahead. 10:40 AM Advance Day is a concept known only to northern circuit lawyers. Intended to provide opportunity for client meetings before court, it’s a capital idea in theory. But it means nothing when four lawyers and a CLW are packed into a 12-by-40-foot room with a boardroom table. We arrive, shuffling our bodies and bags around in the cramped space. We wait and one-by-one, clients arrive. Privacy is in short supply and we make do. By 2:30 PM, business has dwindled and we trundle back to the plane. January 28 - Court Day – 5:00 AM

My alarm clock goes off way too early, or does it? I roll out of bed, trying to regain my mental equilibrium. The charter is leaving at 6:30 AM. Lots to do. I pull on my long johns and grab a wool sweater, cringing at the thought of the cold day ahead. In my home office, I sort through my court bag and make sure that all of the day’s files and supplies are at hand. In the kitchen, I prepare my lunch and grab two bottles of water before heading out the door.

6:45 AM Timmins is cold in the morning but there’s nothing quite like planting your butt on the hard cold vinyl seat of a frozen airplane. This is it. I will be chilled from this point forward until I am home again, despite all of the tidy measures that I’ve taken.

Our plane will land in Kapuskasing, Hearst and Moosonee before finally arriving in Kash around 9:30 AM.

10:00 AM The pick-up truck-slash-taxi drops us off at the community arena in Kash. The front foyer of the arena, where court convenes, is empty and we learn that the judge is late. This is not a promising start for a 15-page docket. Again, the lawyers jockey for work space. People arrive in groups and soon the foyer is crowded. The door is kept open for no apparent reason and the makeshift court is soon at a steady temperature of what feels-like 10 degrees Celsius. I chuckle naively as I get out my HotPaws which soon prove themselves useless. The last laugh is on me. A Hearst lawyer, rookie to the James Bay circuit, has come to court without proper attire – that is, winter boots and long underwear. We old vets shake our heads and smile. He’ll know better next time, poor thing.

10:40 AM - The judge arrives and court is soon underway, standing room only. Justice Patrick Boucher is a new appointment. He replaces Justice Ronald Boivin who has left us for the warmer and headier climes of Old City Hall in Toronto. The judge briefly introduces himself to the restless crowd.

Two trials have been scheduled but it’s very clear that they won’t be heard. Justice is not quite on target here in Kash. Eleven hundred kilometers is a long way from Toronto and the arrows have missed their mark. Many accused see their matters adjourned repeatedly because there is no time for them. The dockets are typically over ten pages in length and even a simple plea matter can take a half-hour if Cree-English interpretation is required. Court is held only once every three months so many matters are “long in the tooth” when they reach their final disposition, by trial or plea. 3:00 PM - The lawyers take their turns huddling under a ceiling heater at one end of the foyer, like pigeons over a subway grate. The judge shows amazing fortitude for low tempera-

June 2010 | Briefly Speaking • En Bref

tures, or maybe he’s hiding a heater under his robes. All of the lawyers are garbed in coats, scarves and gloves as they make their submissions. My water supply is exhausted and so am I.

My attention is sparked by the judge’s reference to a winter tragedy. After a few inquiries, I learn that a young man died on the dike last night, on his snow machine. Many accused have not shown up for their court appearances but the judge has decided that he will not issue warrants in the circumstances. News of this death sets a pall on the proceedings for the rest of the afternoon. 4:45 PM - A family law lawyer has come from Timmins to address her matters. In Kashechewan, rarely more than 10 minutes is ever devoted to the family law docket. After adjourning the entire family law docket for shortage of time, court is in recess and we begin to pack up. We’re all very eager to board the plane and head out.

7:30 PM – After what seems like an interminable flight with stops in Moosonee, Kapuskasing and Hearst, we make landing in Timmins. I feel like I’ve been away from home for weeks, although I can’t explain why. We will do it all again in two weeks when we head up to Attawapiskat. Nancy E. Cooper is a sole practitioner with a criminal law practice in Timmins. Photo: Johanne Levesque for “Kashechewan and Fort Albany From the Air”.

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Briefly Speaking • En Bref | June 2010

Book Review

Getting to Grips with Electronic Discovery Electronic Discovery in Canada: Best Practices and Guidelines (2nd edition) by Oleh Hrycko and Chuck Rothman

David Outerbridge The second edition of Electronic Discovery in Canada: Best Practices and Guidelines, released in fall 2009 by CCH, is a helpful, practical guide to carrying out electronic discovery within an organization. The focus and greatest strength of the book is its explanation of how to complete the essential steps of e-discovery in an intelligent and methodical fashion. Although the text contains a high level review of e-discovery case law and legislation, Electronic Discovery in Canada is not intended to serve as a primer on e-discovery law. Rather, it is a book about the “how” of e-discovery, written against the backdrop of the Canadian legal environment. The book’s authors are Oleh Hrycko and Chuck Rothman, both of H&A eDiscovery, a commercial e-discovery and computer forensics litigation support provider. Mr. Hrycko is an accountant by training, and Mr. Rothman is a professional engineer with computer science expertise. The second edition of the book has been substantially reorganized and rewritten compared to the first edition that was released in 2007 (which was reviewed in the January 2008 edition of Briefly Speaking). The book is 350 pages, with 15 chapters of substantive text taking up 177 pages, and a glossary and several helpful appendices making up the remainder, consisting of pertinent practice directions, new civil procedure rules and e-discovery guidance documents.

It is the “how to” portions of the book in Chapters 6-13 and 15 that have seen the greatest changes. The organization of these chapters now follows the structure of the Electronic Discovery Reference Model (EDRM), beginning with a chapter on information management, followed by chapters dealing with each discrete step in the discovery of electronically stored information (ESI): identification, preservation, collection, processing, review and analysis, and production and presentation. The new Chapter 15 is a step-by-step guide to assembling an e-discovery team for a litigation matter. At the same time, one of the best practical components of the first edition of the book has been retained – Chapter 2, which is a very effective explanation, in lay person’s terms, of how computers work and are structured, and of how computer forensics can be employed to capture various forms of ESI. 22

Another important change in the second edition of Electronic Discovery in Canada is the revised Chapter 5, which reviews the rapidly developing area of national and provincial e-discovery principles and guidelines. Most notably, the authors have added a review of the Sedona Canada Principles Addressing Electronic Discovery. This set of national e-discovery guidelines is quickly becoming the pre-eminent source of e-discovery guidance in Canada, with both legislatures and the courts increasingly referencing and incorporating the Sedona Canada Principles as part of Canadian e-discovery law. Also new is a review of some of the key e-discovery amendments to Rules of Civil Procedure in several Canadian jurisdictions (including Ontario, Alberta and Nova Scotia), and a description of the model e-discovery precedents and other e-discovery guidance documents prepared by the Ontario E-Discovery Implementation Committee. One constructive criticism, looking toward a future edition of the book, is that the text’s high level review of applicable e-discovery law sometimes omits important details. For example, while the text reviews the Sedona Canada Principles as well as the latest e-discovery amendments to the Ontario Rules of Civil Procedure, there is no mention of the important fact that new Ontario Rule 29.1 now requires parties to consult and have regard to the Sedona Canada Principles when negotiating a discovery plan. There are other instances where the text’s review of the applicable law is more illustrative than comprehensive. For detailed consideration of Canadian law regarding e-discovery, readers will want to consult some of the increasing number of available texts in these areas. In its primary role as a sensible, useful and easily digested how-to guide to carrying out e-discovery within a corporate organization, Electronic Discovery in Canada accomplishes its objective. The book will continue to be an important part of the library of any law firm or corporate law department. Mr. Hrycko and Mr. Rothman are to be commended for their work in contributing this helpful addition to the Canadian literature on e-discovery. David Outerbridge is Counsel in the litigation department at Torys LLP in Toronto and is chair of the Ontario E-discovery Implementation Committee.

June 2010 | Briefly Speaking • En Bref

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

JUST for laughs

Lawyers - It’s a Real Zoo Out There Marcel Strigberger I recently attended at a potential client’s home. He was a middle aged gentleman of east European origin, who was injured in a serious motor vehicle accident. He wanted to check me out. I was to be given a once-over not only by his family but also by other members of the community, including the parish priest. As an incentive for the house call, he promised me a piece of the best baklava this side of the Acropolis.

As I rang the doorbell, I heard a loud barking. George opened the front door and out leapt a huge German shepherd, the size of the Trojan horse. This dog seemed to have an avaricious appetite for strangers, equalling the appetite I had minutes earlier for that baklava. Fortunately for me he just sniffed me, like a runaway Hoover. I had heard that if dogs sniff you, you should hold out an open hand. I did that for a minute or so waiting for him to work his way to my hand, from my forehead. He backed down as soon as George shouted, “Tiger, down”. I had no doubt passed the friend or foe test.

The monster dog, however, continued to bark ferociously. George then yelled, “Tiger shhh, the lawyer is here.”

Naturally, at this point I expected Tiger to appreciate the gravity of that comment and to settle down accordingly. Tiger should have been saying to himself, “The lawyer is here? Oh yeah, George is probably paying this guy $350 an hour. That’s a lot of kibbles. I’ll back off.”

No such luck. Tiger continued running around and barking. George bellowed, “Shut up Tiger, I want to speak with the lawyer.” Maybe it was the word lawyer that did it because Tiger suddenly lunged at me again and resumed his sniffing. I pondered what went on in Tiger’s mind. Was he checking out my credentials, like that priest was going to? Before hiring a lawyer, have him checked out by the parish priest and the dog. It even crossed my mind that perhaps the priest had a different function altogether. Maybe in the event that Tiger took a strong dislike to me he was here ready to administer last rites. Just a thought.

George summoned his teenaged daughter, who came over and handed me a little doggie treat. Actually the treat was the size of a football. Vanessa said to me, “Give him this, he’ll be your friend.” I wasn’t sure how I was to give it to him. I sure as hell wasn’t going to turn around and hike it to him on a three count. With trepidation I held out the treat in my right hand (I’m a lefty). This seemed to placate Tiger who gobbled up the football in one chew, and departed in peace.

We all took our places in the dining room and suddenly a new guest arrived. Out of nowhere this grey Angora cat popped up and started brushing herself against my trousers. I smiled and started patting the cat. George shouted at the cat, “Go away Ginger. Don’t bother this lawyer also.” June 2010 | Briefly Speaking • En Bref

JUST FOR LAUGHS This lawyer also? What method did this guy use to choose lawyers? The pet test? If Ginger holds up a card with the number 10 on it, I’m in? I suddenly started sneezing uncontrollably. George’s wife Helen offered me a cup of tea. I asked for Kleenex. This arrived along with Ginger, who now lodged herself on my lap. Once again Vanessa came to the rescue and removed Ginger. She was careful not to drop a large green parrot standing on her shoulder. George continued with the introductions. He said to the parrot, “Say hello to the lawyer, Bugsy”.

The bird was not too responsive. He simply flapped his wings a couple of times and remained mum. I guess he must have seen lawyers before and had an unsavoury experience. Maybe he came up short in an estate fight. A will failed to leave him a huge expected legacy. Who knows?

In order to refute the allegation of parrot harassment, I tried to get the bird to talk. I said, “Hello? Bugsy? Want a cracker?” No luck. He was as silent as that Monty Python parrot. The Birdman of Alcatraz couldn’t make him talk. Vanessa left and eventually we got around to discussing the case. And to eating that baklava.

It’s been a couple of weeks and I have not yet heard from George. Whatever will be will be. I did, however, get an idea for practice development. Perhaps there ought to be a continuing education seminar on how to deal with your clients’ pets. Does anybody know where we can locate Dr. Doolittle? Marcel Strigberger is a humourist trapped inside the body of a civil litigation lawyer- see www.legalhumour.com.

Vanessa exclaimed, “He usually repeats stuff. Maybe you scared him.”

Save the date CBA Canadian Legal Conference in Niagara from August 15-17

Marquez vos calendriers ! Du 15 au 17 août 2010, la Conférence juridique canadienne de l’ABC aura lieu à Niagara!

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.

Les activités entourant la CJC vous permettront d’apprécier pleinement la beauté et le dynamisme d’une des régions vinicoles les plus prestigieuses du Canada. Les séances principales de la CJC se dérouleront à l’hôtel Sheraton on the Falls, tandis que des réceptions et activités sont prévues dans l’ensemble de la région des vignobles. Les festivités de la soirée d’ouverture au Centre Table Rock auront lieu à proximité des chutes rugissantes, alors que la soirée de clôture vous permettra d’explorer les vignobles.

2010 – A very good year!

2010 – un grand cru!

Watch for registration details in early spring at www.cba.org/Niagara2010

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Briefly Speaking • En Bref | June 2010

Les renseignements sur l’inscription seront diffusés au début du printemps prochain à www.cba.org/Niagara2010.

12/10/2009 10:14:03 AM

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12/10/2009 10:14:17 AM

Pilot Mentorship Program a Soaring Success Alayna Miller

About this time a year ago, the OBA launched a pilot mentorship program in the East Region, matching over 40 young lawyers with experienced counsel. Using a process that allowed applicants to self-identify personal characteristics, we brought together lawyers who were sole practitioners, working mothers, coping with disabilities, in minority groups, of particular religious beliefs, and in the same practice area, all in different firms, government positions and in-house roles. The aim was to benefit all involved: to allow mentors to give back to the profession and develop a meaningful relationship with their matches; and to provide crucial guidance to lawyers embarking upon the profession. With high hopes, at the half-way mark of the program we sought feedback from our participants. It turns out, overall, members were pleased with the matching process and were finding the Program valuable. Current participant, Angela Fallow, commented on her experience with mentor, Heidi Bergeron, in Kingston this year:

s a sole practitioner and recent call (2007) with two post-call A maternity leaves under my belt, I welcomed the recent opportunity to enroll as a mentee. I n our chats, my mentor has provided more than just advice on building a law career as a sole practitioner. It is well known that the “practice” of motherhood and the practice of law, whether as a sole practitioner or as a member of a large firm, can be incompatible. I was grateful for the concrete inspiration of a mentor who was successfully managing both a growing law practice and a large family. Janet Lo of Ottawa has also had a positive experience with mentor, Margot Patterson:

y mentor has provided me with excellent support in my first M year of practice. Our frank one-on-one conversations, especially discussions about career development and networking, have been extremely beneficial. I’m very appreciative of her time and her willingness to share insights about her practice. The message was clear that this was a program worth continuing. The OBA Board of Directors agreed.

Accordingly, the Mentorship Committee is thrilled to announce a significant expansion of the Program throughout the province. Regional chairs have graciously agreed to administer the Program in the greater Toronto area, Windsor, Guelph, Sudbury, Thunder Bay, Sault Ste. Marie, and continue in Ottawa / Kingston, where it all began. This issue of Briefly

Speaking coincides with the launch of our new recruitment campaign and, as such, we encourage you to get involved. The time commitment is minimal by design: we request contact once every six weeks as a guideline. We found that inperson meetings are best, if possible, but that phone calls and e-mails are also valuable. The program runs from September to June, with the option of extending the contract if mutually desirable.

“I was grateful for the concrete inspiration of a mentor who was successfully managing both a growing law practice and a large family”

The first year was marked by kick-off breakfasts in Ottawa and Kingston and will close with upcoming finale and recruitment events in June. We envision a similar format in all regions next year. With the help of co-chair Mark Berlin; committed OBA staff; and a devoted Mentorship Committee, we have laid the groundwork for the Program to move forward; complete with a website featuring application forms, program guidelines and discussion topics. Personally, seeing the Program grow and succeed has become a source of great pride; I am a great believer in the benefits of mentorship, especially as a young lawyer, and know that there is much to be learned in our profession beyond substantive law. Many thanks to our East Region Pilot participants for helping us put together a program that we hope to sustain and offer to OBA members for years to come. To sign up or learn more about the OBA Mentorship Program, please visit www.oba.org/mentorship.

Alayna Miller practises labour and employment law in Ottawa at Sevigny Westdal LLP. She is the co-chair of the Mentorship Committee in the East Region and a member of the OBA’s YLD East Executive.

June 2010 | Briefly Speaking • En Bref

A Plan For the Future: Challenges and Opportunities at the Wills Project Maria Sagan

pportunity defines the Wills Project, a volunteer legal clinic directed by law students and affiliated with Pro Bono Students Canada.

At the Project, students and volunteer lawyers draft and execute wills and powers of attorney for low-income clients who are HIV positive. As the Osgoode Hall coordinator of the Project, I am exposed to all the challenges and opportunities confronting such a volunteer legal service. Our primary challenge is client recruitment. The Project holds one wills education session per semester which is intended to be both an information meeting and a recruitment program. Without this session it would be difficult to attract clients as many people are unaware of the service or are distrusting of the legal system. Those who attend do not always qualify for the Project as the criteria for low-income designation is strict. It is difficult to argue that someone receiving multiple disability and government pension plans should be turned away, especially considering that he or she is HIV positive, and yet it happens every year.

The program’s restriction to those who are HIV positive also ignores the needs of other communities. There is no similar service for the general low-income population, or for those who have low incomes and suffer from a different lifethreatening illness, such as cancer. Candidates who qualify for the Project are matched with two student volunteers, either from Osgoode Hall or the University of Toronto, and a volunteer lawyer. Appointments with the lawyers and students are an opportunity for the client to talk about his or her life while others are listening.

As communication is sometimes difficult, there are often waiting periods for these appointments. For example, clients do not always have voicemail on their phones. Further, scheduling two meetings between four people proves to be a challenge. Meetings are booked either at the volunteer lawyers’ offices or at the 519 Community Centre, as the Project does not have a formal office space.

As the end of the winter semester is upon us, the Project is coming to a close. This exemplifies yet another challenge facing this service—because it is student-run, wills are not written over the summer. While seemingly unjust, this is the reality of a volunteer project.

per semester. Their advice and flexibility are invaluable to the Project.

A lack of full-time staff and resources, and the unique issues of the community it serves, are genuine hurdles facing the Project. Yet, its existence impacts many lives, including those of the students and lawyers who work within its boundaries. Clients often return after many years to make changes to their wills. Despite its challenges, the Wills Project provides a small, disadvantaged group with peace of mind and the knowledge that they are in control of their future. This end result brightly overshadows most of the obstacles described above, making the Wills Project a vital and most worthwhile service. Maria Sagan is a third-year student at Osgoode Hall Law School.

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Posti The Le ng g a l C a is offe red as reer Centre tary se a com p of the rvice to mem limenO b n ers tario B Associa ar tion Find u s homep on the OBA a ge – Caree r Cent click ‘Legal re’ E-mail

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The Project is fueled by the spirit of its volunteers. Without their enthusiasm and dedication, no wills would be written. Our success is dependent on the help of the lawyers who supervise the drafting of one will and set of power of attorneys Briefly Speaking • En Bref | June 2010

All In The Family Bill 133, Family Statute Amendment Act 2009 (Act) Elizabeth C. Mourao “ F amilies need a justice system that supports them and their children. We are changing the family justice approach so that it is less confrontational, faster and more affordable for the people it serves” (Attorney General Chris Bentley, Press Release - March 1, 2010)

In late 2008, the Ontario provincial government introduced Bill 133, the Family Statute Amendment Act 2009 (Act), as a means to address key issues in the province’s family courts, particularly in improving the public’s access to justice, addressing deficiencies in the custody regime and improving fairness in matrimonial property and pension division. Bill 133 came into force on March 1, 2010. In an effort to create a family law process that keeps families away from costly adversarial proceedings, Ontario courts will look to make available to parties at an early stage of a proceeding, legal information on alternatives to the court process, such as the use of qualified mediators, collaborative lawyers, parenting coordinators and family arbitrators. Additionally, Bill 133 hopes to simplify paperwork and steps needed, to ensure that those who do remain in the system will have their matter quickly heard and decided by a judge.

Changes to the child custody components of Bill 133 came about as a response to the death of seven-year-old Katelynn Sampson in the summer of 2008. The child’s legal guardian, Donna Irving, was convicted of the murder, along with her boyfriend Warren Johnson. Irving had been granted full custody of Katelynn two months before her death. Katelynn’s mother was a drug addict who was unable to care for her. The biological father was also said to be a drug addict. Her mother signed a consent granting Irving full custody of Katelynn. No child and family services agencies were involved in the court proceeding. Moreover, no criminal record search had been done of Irving or Johnson prior to the custody order being 28

made. As it turned out, Irving had prior criminal convictions for prostitution, drug trafficking and assault with a weapon, while Johnson had faced prior charges for assault.

With the amendments to the Children’s Law Reform Act introduced by Bill 133, specific evidence must now be placed before the court on custody and access matters. Both parents and non-parents seeking custody or access to a child must now file a sworn affidavit that contains a plan of care for the child, information as to who will be residing with the child, and any information concerning their previous or current involvement in any family or criminal proceedings. Nonparents must take it a step further and submit a police record check and verification from the Children’s Aid Society as to their prior or current involvement with the organization. The Children’s Law Reform Act was further amended so that a parent whose name was left off their child’s birth certificate will be able to apply to a court to have their surname added to the child’s surname when the court grants a declaration of parentage. Additionally, the Children’s Law Reform Act now changes and simplifies the process of obtaining restraining orders. Bill 133 also addressed changes to perceived difficulties in dealing with the division of property. Amendments to the definition of “Net Family Property” in the Family Law Act now specifies that debts and other liabilities to be excluded from the calculation of the value of property owned by a spouse on valuation date include any contingency tax liabilities in respect of property. The definition of “Net Family Property”

June 2010 | Briefly Speaking • En Bref

that the changes introduced simply do not go far enough. For example, Bill 133 failed to implement an accessible and cost-effective out-of-court mechanism that automatically recalculates child support payments each year based on updated financial disclosure provided by the payor spouse. Presently, any formal variation in child support necessitates the commencement of proceedings that are normally expensive and time consuming.

now excludes from the calculation of the value of property owned by a spouse on the date of marriage those debts that are directly related to the acquisition or significant improvement of a matrimonial home. Additionally, Bill 133 introduced new sections to the Pension Benefits Act that, in part, include provisions for the valuation of pensions to be carried out by pension plan administrators, and not actuaries. The aim is to reduce, if not eliminate, the battle of the experts and corresponding litigation that can ensue when pensions are valued. While the changes to the current family law regime are welcomed by many, some family law practitioners believe

Ontario Bar Association

Also left out was a change to the current definition of “matrimonial home” within the Family Law Act, which financially penalizes a spouse who owned a home at the date of marriage if they still happen to be residing in the same home when separation occurs. Under current legislation, spouses lose their right to the date of marriage deduction although they may have owned the home outright prior to marriage. Some practitioners had hoped that Bill 133 would have introduced language to address the inherent inequalities that can arise in such situations. The general consensus is that the changes brought by Bill 133 are a terrific first step in making family courts more accessible to the public while trying to address grey areas where change was needed. Let’s keep the momentum for improvement to our family courts going!

Elizabeth C. Mourao is an associate with Ricketts, Harris LLP. Her practice is restricted to family law.

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

STARTS IN SEPTEMBER

Briefly Speaking • En Bref | June 2010

From eDiscovery to iPhones: Lawyers Get Tech Savvy Margot MacPherson Brewer

he American Bar Association’s 24th annual TECHSHOW showed legal professionals how technology can advance their practice on either side of the border.

If there is one place the gap between law and technology is comfortably bridged, it is at the American Bar Association’s mammoth annual TECHSHOW in Chicago. Lawyers, paralegals and law firm tech professionals come from all over North America to learn how technological advances are shaping the legal profession—and vice versa.

The 2010 line-up included more than 60 sessions spanning 15 topical tracks, from eDiscovery to paperless practice to operating a law firm in the “cloud” (on the Internet). New programs this year focused on social network marketing and smart phones. More than 100 technology-based legal support services displayed their wares—both hard and soft—in the cavernous exhibit halls. One Canadian presenter used her own business model to exemplify how technology is transforming traditional law firms to gain competitive footing in a rapidly changing marketplace.

In Taking Your Office Virtual, BC lawyer Nicole GartonJones discussed how shifting economic realities and moves to staunch the exodus of women lawyers from the profession make virtual law offices a viable and practical solution.

Virtual firms with centralized, cloud-based brand, administration and management provide legal services entirely online through a secure portal. Today, billable hours at GartonJones’ firm exceed those of when it operated traditionally.

In The Travelling Lawyer, Garton-Jones advised lawyers who spend time on the road to get their law firm into the cloud. “Road law-rriors” need to invest in the right equipment, make full use of smart phone business features and maintain an “in-office mindset” on the road while keeping vigilant about security.

A session on eMarketing to Clients and Prospects advised lawyers to become sophisticated about using e-mail, video, podcasts and blogging to add value to practice offerings and attract new business. Sixty iPhone Apps in Sixty Minutes was a popular session led by New Orleans attorney and blogger Jeff Richardson. Among Jeff’s top picks (“This app changed my life!” he enthused) is LogMeIn Ignition. The app allows remote log-in directly from your iPhone to your land-based computer at home or at work. (Picture how tech support “takes over” your mouse at work to diagnose a problem: it works like that.) 30

Dragon Dictation is a useful free app for lawyers on the go. Speak into the app on your iPhone. Dragon Dictation transforms your voice to text. You can choose to drop it into an e-mail, select a recipient and push send. Virtual. Magic. Another Richardson recommendation is the DaysFrom Date calculator. Set up the app with date ranges you use most (30 or 90 days, for example). Once you pick the starting reference date, the ending dates are automatically listed. Never miss a filing deadline.

The eDiscovery Ethics panel addressed looming electronic document management issues and the implications of Judge Shira Scheindlin’s leading U.S. legal hold decision (Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, No. 05-9016, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 15, 2010). The panel agreed eDiscovery is an emerging growth area in law. “You want job security? Become the eDiscovery expert in your firm.”

TECHSHOW offers a refreshing mix of practical and theoretical advice. Vendors are generally not allowed to lead conference sessions and presenters are sought out who are enthusiastic about technology for technology’s sake. Faculty, then, is predominantly legal professionals chosen for their hands-on experience in devising technology solutions in their own practices.

If the prolific number of “tweets” scrolling on monitors around the registration desk from lawyers around the country was anything to go by, the North American legal profession is enthusiastically embracing new technologies.

When the ABA TECHSHOW opens its doors at the Chicago Hilton in April 2011, it will celebrate its 25th consecutive year. Clearly, law and technology have been moving on parallel tracks for some time. Attendees here would undoubtedly agree that keeping the law up to speed with technology is not only necessary and professionally advantageous but just gr8.

Margot MacPherson Brewer, M.A., LL.B. is a lawyer and writer living in Ottawa

June 2010 | Briefly Speaking • En Bref

THE CONFERENCE CENTRE AT THE OBA

Book your next meeting with us... The savings our full-service facility provides may surprise you Located in the heart of downtown Toronto, steps from the subway and Union Station, the Conference Centre at the OBA is the cityâ&#x20AC;&#x2122;s best kept secret for value priced event planning. Open year-round, seven days a week, our facility can accommodate meetings from as few as three people to as many as 300. The Conference Centre can meet your every need. Our licensed facility offers a full range of catering and all the technical support your group will require for a successful event. Compare the savings you will enjoy at the Conference Centre against other downtown venues. The Conference Centre is a short walk from major prestige hotels, theatres and all the cultural attractions that has made Toronto an international tourism destination. The Conference Centre has 24 hour security, wheelchair accessibility and offers plenty of parking nearby. Contact our Conference Centre manager, Annette Wing, at (416) 869-1047 ext. 321 or by e-mail at awing@oba.org.

You can also visit our website at www.oba.org/conferencecentre. All OBA members receive a 15% DISCOUNT on room rentals.

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

Ontario’s Paperless Practice Pioneer appointed to prestigious American Bar Association technology conference planning board Margot MacPherson Brewer The first question for Donna Neff was going to be why she thinks she is the first Canadian woman lawyer to be appointed to the American Bar Association’s TECHSHOW Planning Board. Then Neff picks up what looks like an old-fashioned fountain pen. “You need a Livescribe,” she says. Neff holds up the digital pen with a built-in recorder she is using. The new-to-market pen takes notes in pixelated notebooks that timestamps what is written on the page in sync with the recording. Later, tap on the page and the recording rewinds to exactly what was said while you were writing. The opening question was rendered moot.

Donna Neff is a solo estates, wills and real estate practitioner in Stittsville, just minutes from downtown Ottawa. She exudes enthusiasm for technology and delights in being considered a geek. Neff needs little encouragement to hold forth about how technology has changed her law practice and ultimately, her life. In fact, it is that combination of passion and practicality that led to her appointment to the TECHSHOW Planning Board.

“work/life balance was behind her initial decision to get onboard the technology bandwagon.”

“What sold me on going paperless four years ago was the amount of time we wasted looking for documents that were misfiled, misplaced, or stored on somebody’s desk,” she explains. “Storage boxes full of files were beginning to pile up in my basement and I thought, if I practise for another 10 to 15 years, we are going to run out of room. Every lawyer can identify with that.” The transformation of her office didn’t happen overnight, but what had previously seemed to be insurmountable obstacles eventually melted away. After researching the right equipment, software and developing office protocols to ensure compliance with the new system, Neff’s office began the conversion to paperless in 2006. 32

Neff’s successful experience with the conversion of her own office systems led to wider recognition as an expert in advising others on how to set up a paperless law office. In May 2008, she spoke at the LSUC/OBA Solo and Small Firm Conference on “going paperless.” That led to her appointment as co-chair (with Dan Pinnington) of the same conference in 2009 and 2010. Neff graduated from participant to faculty at the annual ABA TECHSHOW in Chicago by offering a law practice management session to the 2,000 or so legal technology professionals in attendance.

Neff believes it is primarily her tremendous enthusiasm for anything technology and law practice management related that ultimately led to her three year appointment on the TECHSHOW Planning Board. Her goals during her tenure are to make TECHSHOW more accessible financially and more widely known in Canada. Approximately 80 Canadian legal professionals attended the conference this year and she would like to see that number increase. “Until you come here, you have no idea how valuable it is,” Neff says. Neff has a larger agenda that motivated her to seek out the efficiencies of technology solutions in small firms. She believes greater uptake of remote access and mobility solutions have huge potential to positively transform the profession, especially for women. “Why are women not staying in law? The profession is currently not friendly to families. Technology can help with that.” For all her professional motivation Neff admits work/life balance was behind her initial decision to get onboard the technology bandwagon.

“Thanks to remote access, I was able to go to South America for a whole month in the winter of 2008. Most small firm lawyers are completely tied to their offices. For all but three days, when I was watching penguins off the coast, I was in touch with my office over the Internet. How many solo practitioners feel they can’t get away from the office for an extended period of time? Well with technology, they can.” Margot MacPherson Brewer, M.A., LL.B. is a lawyer and writer living in Ottawa

June 2010 | Briefly Speaking • En Bref

Model Discovery Plan and E-Trial Precedents Released David Outerbridge The Ontario E-Discovery Implementation Committee (EIC) has recently released public comment drafts of six new important model documents. Four of the documents are closely linked to the January 1, 2010 amendments to the Ontario Rules of Civil Procedure relating to mandatory discovery plans and the principle of proportionality. Two other documents relate to electronic trials. The six model precedents are: • • • • •

a checklist for preparing a discovery plan; two model discovery plan templates—a long form and a short form; a proportionality chart to be used on a motion seeking discovery relief; an e-trial checklist; and a guidance document explaining the essential elements of an electronic trial.

Model Discovery Plans

Under new Rule 29.1 of the Rules of Civil Procedure, parties to civil litigation matters in Ontario are required to negotiate and agree upon a discovery plan before seeking discovery in the action. Although the Rule prescribes a list of essential topics to be addressed in the discovery plan, there is no prescribed form for the discovery plan and many possible topics are not identified. The EIC’s two model discovery plan templates are designed to assist in filling that gap.

The short form template addresses the bare bones of a discovery plan as prescribed by Rule 29.1. The long form template addresses a number of other issues that parties may wish to negotiate as part of a discovery plan, especially in cases with a significant e-discovery component—such as agreed preservation steps, agreed search parameters, and an agreed exchange protocol for electronic data, among other things. The companion document “Checklist for Preparing a Discovery Plan” is a helpful guide regarding issues to consider and topics to negotiate. Both the checklist and the discovery plan templates are designed to be scalable to the needs of the specific case. Proportionality Chart

New Rule 29.2 of the Rules of Civil Procedure contemplates that a party moving for discovery relief will have to demonstrate that the relief sought is proportionate, taking into account the time and expense required to provide the discovery, prejudice to the party discovered, interference with the orderly progress of the action, the availability of alternative discovery, and the volume of documents requested to be produced. The EIC’s model proportionality chart is designed for use on a motion for discovery of documents, functioning in a manner similar to a refusals and undertakings chart. The moving party will complete columns of the chart identifying

Briefly Speaking • En Bref | June 2010

the nature of the production request, the relevance of the documents, and the proportionality factors that favour production. The responding party will then complete a responding column, and the right hand column is for the court’s disposition of the motion. Electronic Trials

There is increasing interest in the option of conducting trials electronically in Ontario, with several recent successful examples of major trials having been conducted in this manner. The EIC’s “What is an Electronic Trial?” is a guidance document describing all key aspects of an e-trial, with topics including, not only the logistics of an electronic trial but also, issues of strategy and cost. The companion “E-Trial Checklist” is a handy guide for counsel to consult when preparing for and implementing an e-trial. Finding and Commenting on the Documents

The documents can be downloaded for free in Word or searchable pdf format from the e-discovery page of the OBA website: http://www.oba.org/En/publicaffairs_en/E-Discovery/model_precedents.aspx All of the documents have been released as public comment drafts. The EIC invites comments on the documents by June 30, 2010. Comments may be submitted to EIC member Michele A. Wright at mwright4@toronto.ca.

Also on the OBA website are 10 previously released EIC model precedents and e-discovery guidance documents, including an annotated e-discovery checklist, sample memoranda to be sent to clients describing the documentary discovery process, a discovery plan in letter format, and a guidance document on minimizing e-discovery costs.

All of the EIC documents include detailed annotations to The Sedona Canada Principles Addressing Electronic Discovery, which under Rule 29.1 parties now are mandated to “consult and have regard to” in preparing a discovery plan for an action. About the EIC

The EIC is a joint committee established by the OBA and The Advocates’ Society. It is composed of litigators from both the private and public sectors, and members of the judiciary in Ontario. Its mandate is to implement “on the ground”, within the Ontario court system and litigation bar, best practices with respect to electronic discovery. The current members of the EIC are Stephanie Beaudry, Duncan Boswell, Tim Buckley, John Buhlman, Alex Cameron, Mr. Justice Colin Campbell, Michael Fraleigh, Derek Freeman, Master Benjamin Glustein, Brett Harrison, Peter Henderson, Kathryn Manning, Brent McPherson, Brad Moore, Dera Nevin, David Outerbridge (Chair), Ken Prehogan, Tom Sutton, Brendan Van Niejenhuis, David Wires and Michele Wright.

David Outerbridge is Chair of the EIC and is Counsel in the litigation department at Torys LLP in Toronto.

Law Day 2010 Happy Birthday Charter of Rights and Freedoms!

pril 2010 was a flurry of activity as upwards of 15,000 participants in schools, courthouses and communities province-wide took part in Law Day’s stimulating series of programs.

With more communities engaged in OBA programming than ever before, Law Day has become more than the OBA’s largest public legal education and promotion tool, but truly an annual institution that, after months of enthusiastic preparation, students, teachers and members of the profession look forward to each year.

the Ministry of the Attorney General of Ontario, ALERT (Advancement of Legal Education and Research Trust, the charitable branch of the OBA), the Ryerson University Legal Centre and Corporate Crazy Catering.

Justice Gloria Epstein presents student with a sweater during prize draw for the silent auction at the Law Day 2010 Closing Ceremonies.

Law Day 2010 Co-Chair Virginia Maclean, Ontario Court of Justice Chief Justice Annemarie Bonkolo, Associate Chief Justice Griffiths and OBA Vice-President Lee Akazaki at the Law Day Closing Ceremonies.

Law Day 2010 was made possible through the support of dedicated OBA members who take an active role in their communities and engage the public on the importance of our Charter and the legal system. Generous financial support for Law Day was provided by the Law Foundation of Ontario,

Planning for Law Day 2011 begins now.

You can do it! It takes you to engage a class in your local school. Speak to us about your interest in Law Day and what options there are for you to engage your community. It only takes a few hours of your time. Contact us today: 1-800-6688900 ext. 346 or by e-mail at fconte@oba.org.

June 2010 | Briefly Speaking • En Bref

(Right to left) Ontario Court of Justice Chief Justice Annemarie Bonkolo, Superior Court of Justice Chief Justice Heather Smith and Justice Gloria Epstein of the Ontario Court of Appeal at the Law Day 2010 Opening Ceremonies.

OBA Vice President Lee Akazaki (standing) and OBA member Audrey Ramsay guide students during the Law Day 2010 So You Think You Can Sue program.

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

Mr. Justice Russ Otter of the Ontario Court of Justice, presents the mock trial team from Assumption College (Brantford) with the 2010 provincial Secondary School Mock Trial championship trophy.

Superior Court of Justice Chief Justice Heather Smith congratulates the winners of the Law Day 2010 photography contest.

(Right to left) Shelley Timms Law Day Committee Co-chair, Regional Senior Justice of the Ontario Court of Justice Madam Justice Kathryn Hawke with Colleen Goulet and Heidi Swartz of Humberside Collegiate School (Etobicoke).

Assumption College and Humberside Collegiate go head-to-head in the OBA Secondary School Mock Trial championship round.

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

he Photography Contest is a free program that sees the OBA invite Ontario students between the ages

of 12 and 18 to par ticipate and show their creativity. Students are asked to create powerful photographic

images,

which

some

way

represent the core principles of the Canadian Charter of Rights and Freedoms and this year’s Law Day theme.

Photo Contest Winners: (Directly above) Representatives from St. Edmund Campion Secondary School (Brampton) receiving their first place prizes for the photograph ‘1982’ by the grade 12 Canadian & International Law Class from (back, right to left) Photographer Tom Hamilton, Deidre Newman, Chair Law Day Photography Contest, Photographer Renata Hamilton and Photographer Simon Tanenbaum (Top Right) Rebecca Annibale (Mississauga) in front of her second place winning photo, ‘Hand of a Nation’, (Bottom Right) Suganya Thavachandran (Scarborough) in front of her third place winning photo, ‘Candle Light Vigil’. Briefly Speaking • En Bref | June 2010

JOT Across the Province

ozens of Ontario Court of Justice sites are now engaged in the Justice on Target (JOT) strategy in every region across the province.

Local justice participants are forming leadership teams at 38 small - and medium-sized courts to look for any areas of improvement in local processes and also to review the best practices gathered to date at 11 other medium to large sites across the province. While there is a recognition that criminal court delay may not be as great an issue at small and medium court sites, one of the strengths of the strategy is the opportunity to share best practices and learn from the work being done elsewhere. As Local Leadership Teams are formed in these smaller sites, they are identified as “Action Sites” on the Justice on Target website (attorneygeneral.jus.gov.on.ca/english/jot), where criminal court statistics dating back to 2000 are also posted publicly. Statistics for 2009 are now posted.

Transparency and accountability are among the hallmarks of JOT. Statistics are being made available so that the public can follow the progress of the strategy and see the impact on courthouses in their local communities. The target is a 30 percent reduction in the provincial average length of time and average number of court appearances needed to complete a criminal case by June 2012. Justice on Target is the first ever collaborative, resultsbased approach to reducing delays in the criminal courts and the strategy is making progress. More sites are becoming involved and the work is gaining momentum. The Sudbury Protocol

Acting Director of Crown Operations, North Region, John Luczak sees the benefits of a 2009 protocol, written by Regional Senior Justice Richard Humphrey. It spells out some general guidelines for case progression in the Ontario Court of Justice in Sudbury.

Under the protocol, accused are expected to retain counsel within two weeks of the first appearance. Once Defence Counsel is retained, the next remand is six weeks for adults and three weeks for young people. In the time between the two appearances, Counsel is expected to get disclosure, determine the intentions of the client and hold a resolution meeting with the Crown. Luczak admits it can be a challenge for everyone to get it accomplished in the six-week window spelled out in the protocol. But, he adds, “Our early resolution rate is up significantly and the collapse rate is starting to come down.” The protocol resembles a “Three-Appearance Standard” one of seven initiatives identified at the initial Action Sites. Now that the Sudbury court has been engaged as a JOT Action Site, local leaders are building on the existing protocol in addition to looking at all of the court’s local processes.

The protocol stipulates that resolution meetings called counsel pre-trials (CPT), are mandatory in all cases and are to be initiated by the Crown. All cases must have a confirmation hearing or final pre-trial (FPT) six weeks before the trial or preliminary hearing date with the accused present. If the case is not resolved, the accused is arraigned and the trial date is confirmed. Pleas can be entered and the matter completed there or remanded to a date for sentencing.

While justice participants in Sudbury have been engaged in JOT since last fall, smaller courts in the region are becoming engaged now. Regional Senior Justice Humphrey, the author of the protocol, has committed to having a presence on all Local Leadership Teams in Northwestern Region courts. June 2010 | Briefly Speaking • En Bref

Happy Pride! Your Pride festivities begin early this year. Please join the Ontario Bar Association Sexual Orientation and Gender Identity Section and The Law Society of Upper Canada to kick off Pride Week.

10th Annual Pride Panel Discussion & Reception Wednesday, June 16th Panel Discussion – 4:00 p.m. to 6:00 p.m. Reception – 6:00 p.m. to 8:00 p.m. The Law Society of Upper Canada 130 Queen St. West, Toronto (enter eastside doors facing Nathan Phillips Square) To register/RSVP, visit the Law Society website at: http://ecom.lsuc.on.ca/equity RSVPs accepted until June 14, 2010

ADMISSION IS FREE Registration is required

For more information, please e-mail: rticzon@lsuc.on.ca.

011_0043_PrideDay_2010.indd 1 Briefly Speaking • En Bref | June 2010

4/22/2010 3:38:51 PM 39

OBA Professional Development

CALENDAR OF UPCOMING PROGRAMS OBA Award for Excellence in Trusts and Estates Year End Dinner Tuesday, June 1

OBA Award for Excellence in Pensions and Benefits Year End Dinner Wednesday, June 2

Natural Resources Year End Dinner Thursday, June 3

Municipal Law Award for Excellence in Municipal Law Monday, June 7

Charity and Not-For-Profit Law Year End Dinner and AMS John Hodgson Award Tuesday, June 8

Worker’s Compensation Ron Ellis Award Dinner Wednesday, June 9

Taxation Law Year End Address Thursday, June 10

Real Property Award Dinner Thursday, June 10

Corporate Counsel Year End Dinner Tuesday, June 15

YLD Blue Jays Game Wednesday, June 23

International Law Year End Award Dinner Thursday, June 24

SAVE THE DATE: Civil Litigation Award Dinner 2010 Recipient Bonnie Tough Wednesday, September 29

www.oba.org/pd for more information

June 2010 | Briefly Speaking • En Bref

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