February 2011 Briefly Speaking by Ontario Bar Association

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

February 2011 | Vol. 36 No. 1

XYZ

EnBref

Brieflyspeaking

Bridging the

Generation

Gap

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BRIEFLYspeaking OBA Officers/ Comité directeur de l’ABO R. Lee Akazaki President/Président Paul R. Sweeny 1st Vice President/1er Vice-président Morris A. Chochla 2nd Vice President/2e Vice-président Sean M. Kennedy Secretary/Secrétaire Douglas R. Downey Treasurer/Trésorier Carole J. Brown Immediate Past President/Présidente 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

14 26 29 32

Bridging the Gap with Roy McMurtry

Nicholson & Son

“Y” Enter Practice

Incivility: The A-Hole Factor

Chantal Brochu Buset & Partners LLP The Honourable Doug Lewis Lewis Downey Tornosky Lassaline & Timpano Jeffrey S. Percival Pallet Valo LLP J. Andrew Sprague Miller Thomson LLP Questions or Comments? / Questions ou commentaires? Editorial Team, Briefly Speaking/ Rédaction, En bref Robert Mitchell Director, Communications and Marketing/ Directeur, communications et marketing 416-869-1047 ext/poste 318 rmitchell@oba.org

Catherine Brennan Communications Specialist/ Spécialiste de communications 416-869-1047 ext/poste 357 cbrennan@oba.org

Pilot Project: Circuiting Toronto Masters to Central East and West | Audrey Ramsay and Brian Bangay | 34

Cheryl Crocker Marketing Specialist/ Spécialiste marketing 416-869-1047 ext/poste 309 ccrocker@oba.org

COLUMNS

Rob Gilmour Advertising Sales Vente d’annonces 416-869-1047 ext/poste 406 rgilmour@oba.org

Smartphone Etiquette | J. Andrew Sprague | 37

Filippo Conte Bilingual Communications Specialist/ Spécialiste bilingue de communications publiques 416-869-1047 ext/poste 346

Advocacy In Action | Attorney General Announces Family Law Reforms at OBA | 23

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

Snapshots | OBA Supports Daily Bread, MAG Recognized | 38

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

Briefly Speaking • En Bref | February 2011

Nota BenE

Nota Bene nota bene nota bene nota bene nota bene nota bene nota bene nota bene nota bene SUPERIOR COURT OF JUSTICE The Honourable Paul J. Henderson, a sole practitioner in Oakville, is appointed a Judge of the Superior Court of Justice of Ontario, Family Division (London), to replace Mr. Justice H. Vogelsang, who elected to become a supernumerary judge.

Mr. Justice Henderson received a Bachelor of Arts (B.A.) in 1978 and a Bachelor of Laws (LL.B.) in 1981 from Queen's University. He was admitted to the Ontario Bar in 1983. Mr. Justice Henderson has been a sole practitioner since 2000. He was a legal agent for the Office of the Children's Lawyer and a Deputy Judge of the Small Claims Court. He was a Federal Assistant Crown from 1989 to 1992. He was a partner with Brian J. Hanna and Daniel Barichello from 1986 to 2000 and an Associate with Brian Hanna from 1983 to 1986. His main areas of practice were family law, civil litigation and wills.

Mr. Justice Henderson has been a Bencher and a member of several committees for the Law Society of Upper Canada since 2006. He has been a member of the Peel-Halton Collaborative Family Law Association since 2001, a member and past president of the Halton County Law Association since 1983, the Peel Law Association and a member of Family Mediation Canada since 2000. He is actively involved in several charitable and community organizations.

The Honourable Andrew J. Goodman, an Assistant Crown Attorney with the Ministry of the Attorney General of Ontario in Milton, is appointed a Judge of the Superior Court of Justice of Ontario (Milton), to replace Mr. Justice M. Quigley, who was transferred to Toronto to replace Mr. Justice C.L.

Campbell, who elected to become a supernumerary judge.

Mr. Justice Goodman received a Bachelor of Social Sciences (B.S.Sc.) in 1984 and a Bachelor of Laws (LL.B.) in 1991, both Magna Cum Laude, from the University of Ottawa. He also received a Master of Arts (M.A.) in Public Administration in 1988 from Carleton University. He was admitted to the Ontario Bar in 1993 and the Alberta Bar in 1998.

Mr. Justice Goodman has been an Assistant Crown Attorney in Milton since 2000. He was Counsel and Senior Risk Management consultant with Lindquist Avey McDonald Baskerville, forensic accountants in Toronto from 1998 to 1999. He was with the Royal Canadian Mounted Police Service from 1977 to 1997. During that time, he was a legal representative of the R.C.M.P. in Ottawa from 1992 to 1997; Detachment and Unit Commander in Cornwall in 1997-1998; Staff Relations Representative in Ottawa from 1984 to 1988 and a Police Constable in Manitoba from 1977 to 1984. His main area of practice was criminal law.

Mr. Justice Goodman was an Adjunct Professor at the University of Guelph-Humber in Toronto from 2004 to 2009. He has been a member of the Ontario Crown Attorneys' Association since 2000, including the Board of Directors and Education Committee. He was member of the Ontario Bar Association from 1992 to 2004; the Canadian Bar Association, Administrative Law Section from 1992 to 2002 and of the Canadian Corporate Counsel Association from 1997 to 2000. He has been a lecturer to local lawyers of the Halton County Law Association and guest speaker at numerous seminars. He has been a member of the Board of Directors for the John Howard Society and for the Elizabeth-Fry Society, as well as a volunteer with several associations. February 2011 | Briefly Speaking â&#x20AC;˘ En Bref

Nota Bene The Honourable John P.L. McDermot, a partner with Craig, Boswell, McDermot in Barrie, is appointed a Judge of the Superior Court of Justice of Ontario (Bracebridge), to replace Mr. Justice T.M. Wood, who elected to become a supernumerary judge.

Mr. Justice McDermot received a Bachelor of Arts (B.A. History) from Brock University in 1977. He received a Bachelor of Laws (LL.B.) from the University of Ottawa in 1981 and was admitted to the Bar of Ontario and of Alberta in 1982. Mr. Justice McDermot has been a partner with Craig, Boswell, McDermot since 1998. He was an associate and partner with Zwicker, Evens & Lewis from 1990 to 1998; associate solicitor with Weir & Fould from 1988 to 1990; assistant city solicitor for the City of Brantford in 1987-1988; associate solicitor with Pearson, Flynn, Sturdy & Lennox in 1986-1987 and litigation associate with Burnet, Duckworth & Palmer in Calgary from 1986 to 1992. His main areas of practice were family law, alternative dispute resolution, real estate, civil litigation and wills and estates. Mr. Justice McDermot has been a member of the Executive of the Simcoe County Law Association, the Arbitration Institute of Canada, and the Legal Aid Area Committee. He was a member of the Community Resources Committee and Family Court Liaison Committee. He has been President of the Simcoe County Family Law Lawyers' Association since 1999 and a member of the Mediation Centre of Simcoe County since 1994.

We’re trying something new at Briefly Speaking with a

Letters to the Editor section that lets

you, our readers, have your say about the editorial content and direction of the official magazine of the OBA. You can contact us by e-mail at brieflyspeaking@oba. org or opt for “snail mail” at:

Briefly Speaking Ontario Bar Association 20 Toronto St., Suite. 300 Toronto, Ontario M5C 2B8 We want to hear from you about the quality of the articles, the look and design of the magazine and its value to you as a practising member of the Bar. It’s your magazine; it’s time you told us what you think. Don’t hesitate to offer suggestions, constructive criticism or story ideas. Address your thoughts to Letters to the Editor, Briefly Speaking at either address provided and we will print your responses in the forthcoming October issue. Keep your thoughts to 250 words or less. We look forward to hearing from you.

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Briefly Speaking • En Bref | February 2011

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ADR Civil Litigation Corporate/Commercial Environment Estate

President’s Message

Lift Nozzle and Squeeze Handle: Is Self-Service Law Really the Answer?

Lee Akazaki

e University of Toronto hosts an international symposium on the provision of legal h services to people who do not qualify for legal aid. In Ontario, public legal institutions study civil access to justice as a serious democratic deficit. All of a sudden, why are we so interested in law for the middle class?

In post-war 1950’s Ontario, industry and commerce defined legal needs. Civil cases in the law reports reflected the parties associated with having lawyers: railways, mining, branch plants, banks and insurers. The 50’s were also the origins of our first legal aid plan, and lawyers worked for free. While lawyers had a long tradition of good works, the bar suddenly saw an institutional need for providing legal services to a broader cross-section of society. The bar made an important choice. As democratic institutions grew, access to our expertise could enable public participation. On the other hand, it could be an obstacle, leading to calls for the profession’s independence to end. Sixty years later, the commercial law workload of our courts has been pushed out and into private arbitration. Courtrooms fill up with family conflicts, personal injury victims and employment disputes. Given the delays and inefficiencies of the civil justice system, the economics of pro bono legal services has been unsustainable for decades. When times are tough, ordinary people want more law. People from all walks of life fend for themselves and encounter the law’s sharp edges. Well-intentioned leaders in the bar have proposed alternatives to private practice lawyers and law firms, such as ‘unbundled’ legal services (a mixture of self-help and lawyer-help), websites, and other self-serve and semi-self-serve access points. Enabling more self-help, however democratic, will also fuel the demand for judicial resources. Such demand, without providing for resources to meet them, only makes it more difficult for lawyers to act for clients in the courts. 4

Unfortunately, these informational alternatives assume vastly more legal literacy than the average lay person possesses. Instead of devising processes that cut lawyers’ services into small bites, or seek to replace lawyers with websites or call centers, now is the time to enable lawyers to deliver the services only lawyers can deliver. Self-help is really not a solution but a last resort, and usually a problem. The law deficit for the low-to-middle income earners is not limited to litigation. Small businesses, franchisees and others are denied justice if they organize their affairs without being able to afford legal advice. Failure to have a lawyer draft a separation agreement early on leads to fights over money and children in the courts. In short, put a lawyer in a community where once there was no one, and you have a net gain in a society’s access to justice. (This is not a mere hypothesis. Justicenet.ca, for example, provides a match-making service for clients seeking lawyers for more modest hourly rates. Lawyers have the will. They just need the means.) Community access to justice also benefits law firms whose business model is national or global. Think about it. While the individual large-firm lawyer may not be aware of their reliance on their retail counterparts, any managing partner or law firm CEO has to see the need to support the entire bar. As did the 1950’s lawyers who created legal aid, we must not forget the well from which we all draw sustenance is a common one: the licence to practice in a self-regulated profession. Unless we all help put new lawyers in Cochrane or Rainy River instead of recruiting them all to Toronto, attrition will ensure demise of the profession’s ability to provide access to law. Like solicitor-client February 2011 | Briefly Speaking • En Bref

President’s Message privilege or credible conflict of interest rules, access to justice is a bread-and-butter issue. It is not just for bleeding hearts. Our profession as a whole is threatened if we do not live up to the public’s expectation of access. The real solution must be found in support for the local lawyer. As the lawyers’ association, finding the solution is the OBA’s work. This brings me to the skill-testing portion of this President’s Message. Which one of these businesses is not like the other? (a) dry cleaners;

(b) doctors’ offices;

26 Briefly Speaking (Multi-tool)

12/18/08

2:51 PM

If the criterion is access to small-business tax incentives, the answer is “(d).” Doctors and dentists have been permitted to incorporate and split their income as dividends with non-professional family members. Lawyers, in contrast, can do so only up to the value of actual services rendered by the family member. By virtue of subsection 61.0.1(4) of the Law Society Act (LSA), lawyers cannot issue shares in professional corporations to non-lawyers. As an exception to the Business Corporations Act, subsection 61.0.1(4) is nothing less than a tax on legal professional corporations. In essence, Ontario taxes access to justice. Last September, the OBA created a special task force chaired by our First Vice-President Paul Sweeny, to start a long-needed campaign to seek the elimination of this provision in the LSA. Every member of the OBA can help the work of the task force by communicating the message to his or her local MPP. If you need OBA to help do this in your community, we will be there.

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Briefly Speaking • En Bref | February 2011

Message du président

Prenez le pistolet et serrez la poignée:

le droit libre-service est-il réellement la réponse? Lee Akazaki

’Université de Toronto organise un symposium international concernant la prestation de services juridiques aux individus qui ne sont pas admissibles à l’aide juridique. En Ontario, les institutions juridiques publiques considèrent l’accès civil à la justice comme un déficit démocratique grave. Pourquoi nous intéressons-nous subitement au droit pour la classe moyenne?

Dans l’Ontario de l’après-guerre, lors des années 1950, l’industrie et le commerce ont défini les besoins juridiques. Les cas civils des recueils de jurisprudence reflétaient les parties qui disposaient des services des avocats : chemins de fer, mines, succursales d’usines, banques et assureurs. Les années 1950 ont également vu la naissance de notre premier plan d’aide juridique, et les avocats travaillaient gratuitement. Bien que les avocats étaient reconnus depuis longtemps pour leurs bonnes œuvres, le barreau a subitement décelé le besoin institutionnel de fournir des services juridiques à une section plus importante de la société. Le barreau a fait un choix important. Au fur et à mesure du développement des institutions démocratiques, l’accès à nos compétences pouvait permettre la participation publique. À l’opposé, cela pouvait être un obstacle, ce qui a entraîné des demandes pour mettre fin à l’indépendance de la profession.

Soixante ans plus tard, la charge de travail liée au droit commercial de nos tribunaux a été poussée vers l’arbitrage privé. Les tribunaux sont remplis de conflits familiaux, de victimes de préjudices personnels et de disputes liées à l’emploi. Étant donné les délais et les insuffisances du système de justice civile, les arguments économiques sous-tendant les services juridiques bénévoles ne sont plus tenables depuis des années. Lorsque les temps sont durs, les gens ordinaires demandent davantage de lois. Des individus de tous les milieux se débrouillent par euxmêmes et se retrouvent face aux rigueurs du droit. Des leaders du barreau pleins de bonnes intentions ont proposé des solutions de rechange aux avocats en pratique privée et aux sociétés d’avocats, tels que des services juridiques « dégroupés » (un mélange de libre-service et de service d’avocats), des sites web et d’autres points d’accès libre-service et semi-libre-service. Toutefois, la disponibilité de plus de libres-services, aussi démocratiques soient-ils, alimentera également la demande pour les res6

sources juridiques. Avec une telle demande, sans des ressources pour la satisfaire, il devient plus difficile pour les avocats de représenter leurs clients devant un tribunal.

Malheureusement, ces solutions de rechange liées à l’information supposent qu’une personne ordinaire possède beaucoup plus de connaissances juridiques qu’elle ne possède réellement. Au lieu de concevoir des processus qui découpent les services des avocats en petites bouchées ou qui cherchent à remplacer les avocats avec des sites Web ou des centres d’appels, le moment est arrivé de permettre aux avocats de fournir les services qu’eux seuls peuvent fournir. Le libre-service n’est pas une solution, mais un dernier recours, et c’est généralement un problème. Le déficit juridique pour les personnes au revenu faible à moyen ne se limite pas aux procès. La justice est refusée aux petites entreprises, aux franchises et à d’autres si elles organisent leurs affaires sans avoir les moyens d’avoir recours à des conseils juridiques. S’il n’est pas possible de faire rédiger une entente de séparation par un avocat tôt dans le processus, cela entraîne des disputes concernant l’argent et les enfants devant les tribunaux. En bref, mettez un avocat dans une collectivité où il n’y en avait aucun, et on peut observer un gain net dans l’accès à la justice de la société. (Cela n’est pas qu’une hypothèse. Justicenet.ca, par exemple, fournit un service de liaison pour les clients qui recherchent des avocats dont le tarif horaire est moins élevé. Les avocats ont la volonté. Ce dont ils ont besoin, ce sont des moyens.) L’accès communautaire à la justice présente également un avantage pour les sociétés d’avocats qui ont un modèle d’affaires national ou mondial. Pensez-y. Bien qu’un avocat individuel travaillant pour une grosse société n’est peut-être pas au courant de sa dépendance à l’égard de ses homologues travaillant seuls, tout associé directeur ou président de société d’avocats doit conFebruary 2011 | Briefly Speaking • En Bref

Message du président stater la nécessité de soutenir l’ensemble du barreau. Comme l’ont fait les avocats des années 1950 qui ont créé l’aide juridique, nous ne devons pas oublier que le puits qui nous soutient est commun à tous : le droit de pratiquer au sein d’une profession autoréglementée. Si nous n’aidons pas tous à installer de nouveaux avocats à Cochrane ou à Rainy River au lieu de tous les recruter à Toronto, l’attrition aura pour conséquence que la profession ne pourra plus donner accès au droit. Comme le secret professionnel de l’avocat ou les règles dignes de foi relatives au conflit d’intérêts, l’accès à la justice est une question essentielle. Elle ne concerne pas uniquement les amis du peuple. Globalement, notre profession est menacée si nous ne satisfaisons pas les attentes du public relativement à l’accès. La solution réelle doit être le soutien de l’avocat local. En tant qu’association d’avocats, la recherche de la solution est l’œuvre de l’ABO. Cela m’amène à la question d’habileté de ce message du président. Laquelle de ces entreprises n’est pas comme les autres? (a) nettoyeurs;

Si le critère est l’accès à l’incitation fiscale pour les petites entreprises, la réponse est « (d) ». Les médecins et les dentistes ont la permission de se constituer en personne morale et de diviser leur revenu à titre de dividendes avec des membres de la famille ne faisant pas partie de la profession. À l’opposé, les avocats ne peuvent le faire que jusqu’à concurrence de la valeur des services réels rendus par le membre de la famille. En vertu du paragraphe 61.0.1(4) de la Loi sur le Barreau, les avocats ne peuvent pas émettre à des non-avocats des actions dans des ordres professionnels. Comme exception à la Loi sur les sociétés par actions, le paragraphe 61.0.1(4) n’est rien moins qu’une taxe sur les ordres professionnels juridiques. Essentiellement, l’Ontario taxe l’accès à la justice. En septembre dernier, l’ABO a créé un groupe de travail spécial présidé par Paul Sweeny, notre premier vice-président, pour lancer une campagne bien nécessaire pour éliminer cette disposition de la Loi sur le Barreau. Chaque membre de l’ABO peut aider le groupe de travail en transmettant ce message au député de sa circonscription. Si vous avez besoin de l’ABO pour le faire dans votre collectivité, nous sommes là pour vous aider.

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Briefly Speaking • En Bref | February 2011

Supreme Court of Canada Update

Summaries Eugene Meehan, Q.C.

he following is 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.

Supreme Court of Canada Update APPEAL JUDGMENTS

ABORIGINAL LAW: DUTY TO CONSULT

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (B.C.C.A., February 18, 2009) (33132) October 28, 2010

Beckman v. Little Salmon/Carmacks First Nation (YT C.A., August 15, 2008) (32850) Nov. 19, 2010 The S.C.C. held:

• the reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982 • the argument that the treaty is a "complete code" is untenable

• as the text of s. 35(3) makes clear, a modern comprehensive land claims agreement is as much a treaty in the eyes of the Constitution as are the earlier pre- and post-Confederation treaties

• a treaty does not exclude the duty to consult and, if appropriate, accommodate.

The S.C.C. held:

• to trigger the duty to consult, the Crown must have real or constructive knowledge of a claim to the resource or land to which it attaches • the threshold, informed by the need to maintain the honour of the Crown, is not high

• actual knowledge arises when a claim has been filed in court or advanced in the context of negotiations, or when a treaty right may be impacted

• constructive knowledge arises when lands are known or reasonably suspected to have been traditionally occupied February 2011 | Briefly Speaking • En Bref

Supreme Court of Canada Update by an aboriginal community or an impact on rights may reasonably be anticipated

COMMERCIAL LAW: PRIORITIES; FEDERAL BANK ACT v. PROVINCIAL PPSA

• while the existence of a potential claim is essential, proof that the claim will succeed is not; what is required is a credible claim.

Bank of Montreal v. Innovation Credit Union (Sask. C.A., March 12, 2009) (33153) Nov. 5, 2010

Quebec (Attorney General) v. Canadian Owners and Pilots Association (Que. C.A., March 4, 2008) (32604) Oct. 15, 2010

• the proper interpretation of ss. 427(2) and 435(2) of the Bank Act leads to the application of provincial property law to determine the effect of a prior security interest

AERONAUTICS: DIVISION OF POWERS

Here the S.C.C. held:

• the first step is to determine whether the provincial law trenches on the protected "core" of a federal competence; it does, the second step is to determine whether the provincial law's effect on the exercise of the protected federal power is sufficiently serious to invoke the doctrine of interjurisdictional immunity.

The S.C.C. upheld the decision of the Court of Appeal below which itself had held:

• here, the first-in-time PPSA security interest had priority over the Bank Act security because the Bank acquired no greater interest than the debtor himself had at the time the Bank Act security was taken

• the Bank's security interest was therefore subject to the Credit Union's prior interest, regardless of the fact that the latter was unperfected.

• the location of aerodromes lies at the core of the federal aeronautics power; long-standing precedent establishes that where aircraft may take off and land is a matter protected by the doctrine of interjurisdictional immunity; since the Quebec Act purports to limit where aerodromes can be located, it follows that it trenches on the core of the federal aeronautics power.

The S.C.C. wrote at the end of this judgment that “In summary, a proper interpretation of the Bank Act gives an earlier unperfected PPSA interest priority over a subsequent Bank Act interest, and there is no provision in the PPSA which subordinates an unperfected PPSA interest to a Bank Act interest.”

AERONAUTICS: DIVISION OF POWERS

COMMERCIAL LAW: PRIORITIES; FEDERAL BANK ACT v. PROVINCIAL PPSA

Quebec (Attorney General) v. Lacombe (Que. C.A., March 4, 2008) (32608) Oct. 15, 2010

Royal Bank of Canada v. Radius Credit Union Ltd.(Sask. C.A., March 12, 2009) (33152) Nov. 5, 2010

BANKRUPCY & INSOLVENCY: UNREMITTED GST

CONSTITUTIONAL LAW: DIVISION OF POWERS

Similar summary to that above.

Century Services Inc. v. Canada (Attorney General) (B.C.C.A., May 7, 2009) (33239) Dec. 16, 2010

With regard to reconciling provisions of the CCAA and the Excise Tax Act in the context of a corporate reorganization, it is the CCAA and not the ETA that provides the rule. The broad discretionary jurisdiction conferred on the supervising judge must be interpreted having regard to the remedial nature of the CCAA and insolvency legislation generally. The court has the discretion to partially lift a stay of proceedings to allow the debtor to make an assignment under the Bankruptcy and Insolvency Act. CIVIL PROCEDURE IN QUEBEC: LIMITATION PERIODS Christensen v. Roman Catholic Archbishop of Québec (Que. C.A., July 8, 2009) (33360) Oct. 29, 2010

The S.C.C. wrote that the point at which prescription started to run raised questions of fact that could not be resolved on the face of the record, and the trial judge will have to assess the evidence, hence, the case was remanded back to the Quebec Superior Court.

Briefly Speaking • En Bref | February 2011

Similar summary to that above.

Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto (Fed. C.A., October 31, 2008) (32908) Nov. 4, 2010

Labour relations presumptively fall under provincial authority. Federal jurisdiction arises only as an exception when the nature of an entity's operations can be properly characterized as federal on an application of the "functional test". CONSTITUTIONAL LAW: DIVISION OF POWERS

NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union (B.C.C.A., August 27, 2008) (32862) Nov. 4, 2010 Similar summary to that above.

CRIMINAL LAW: POST-OFFENCE CONDUCT R. v. Allen (Alta. C.A., October 16, 2009) (33558) Oct. 27, 2010

The S.C.C. only wrote 2 paragraphs in this judgment, the second one being: “We are not persuaded that the jury instruc-

Supreme Court of Canada Update tions, read as a whole and in the context of the issues at trial, contained any such error. As the majority in the Court of Appeal concluded, it is our view that the trial judge's ‘charge to the jury was fair, balanced and accurate on the challenged topics of post-offence conduct’" (para. 93). The appeal is dismissed." CRIMINAL LAW: PROVOCATION

R. v. Tran (Alta. C.A., June 2, 2008) (33467) Nov. 26, 2010

CRIMINAL LAW: SEXUAL ASSAULT; W (D.) PRINCIPLE

R. v. Lee (Alta. C.A., February 1, 2010) (33575) Nov. 12, 2010 The SCC held:

• as a partial defence, it serves to reduce murder to manslaughter when certain requirements are met; the defence, which originated at common law, is codified in s. 232 of the Criminal Code

• the suggestion that the majority of the Court of Appeal erred in applying the test for unreasonable verdict set out in Corbett 1975, and recently upheld in Biniaris 2000, rather than the test for appellate intervention where there has been a misapprehension of evidence as in Lohrer 2004 is rejected; the majority of the C.A. below considered, with one minor exception, that what the appellant alleged to be misapprehensions of the evidence were simply different interpretations of the evidence than those adopted by the judge

• it is not sufficient, however, that an accused's sudden reaction to a wrongful act or insult may be explained from a purely subjective standpoint

DAMAGES IN QUEBEC, WILLS & ESTATES: PUNITIVE AND EXEMPLARY DAMAGES

The S.C.C. held:

• provocation is the only defence which is exclusive to homicide

• the accused's conduct is partially excused out of a compassion to human frailty

• the provision incorporates an objective standard against which the accused's reaction must be measured - that which may be expected of the "ordinary person" in like circumstances • not all instances of loss of self-control will be excused.

CRIMINAL LAW: REASONABLE EXPECTATION OF PRIVACY R. v. Gomboc (Alta. C.A., August 21, 2009) (33332) Nov. 24, 2010 The S.C.C. held (with regard to information related to energy consumption at a suspected grow-op):

• considerations relevant to the informational privacy analysis lead to the conclusion that no expectation of privacy in the electricity consumption information was objectively reasonable • disclosing information about electricity consumption is not invasive nor revelatory of the respondent's private life • it does not yield anything meaningful in terms of biographical core data that attracts constitutional protection

• disclosure was explicitly permitted by the applicable regulatory scheme • the electricity company had an interest in the information, which was not entrusted to it with any expectation of confidentiality, and it employed legitimate means to gather the information 10

• none of the factors relevant to the informational privacy analysis support a conclusion that the information in question was of the sort that attracts Charter protection.

• as for the trial judge's application of the W. (D.) principle, a reading of her reasons as a whole does not support the conclusion of the dissenting judge that she erred in her application of the reasonable doubt standard to the whole of the evidence.

de Montigny v. Brossard (Succession) (Quebec Court of Appeal, August 26, 2008) (32860) Nov. 10, 2010

In the context of an individual strangling his former spouse, drowning the couple’s two children, and then committing suicide, the S.C.C. held: • it is too narrow a view of the role of punitive damages to say that there is no point in awarding them where the person who committed an unlawful act is deceased;

• to be entitled to exemplary damages, successors under an estate must first prove unlawful interference with a right; the second criterion involves determining whether the interference was intentional; intentionality refers not to the intent to commit the fault but rather to the intent to cause the result thereof.

FREEDOM OF THE PRESS: JOURNALIST-SOURCE PRIVLEGE; PUBLICATION BANS Globe and Mail v. Canada (Attorney General) (December 15, 2008) (32975), (January 30, 2009) (33097), (August 26, 2008) (33114) Oct. 22, 2010 The S.C.C. held:

• there is a basis in the laws of Quebec for a journalistsource privilege or an exemption from the general obligation to give evidence in civil cases February 2011 | Briefly Speaking • En Bref

Supreme Court of Canada Update • to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate that the questions are relevant; if the questions are irrelevant, that will end the inquiry and there will be no need to consider the issue of journalist-source privilege; however, if the questions are relevant, then the court must go on to consider the four Wigmore factors and determine whether the journalist-source privilege should be recognized in the particular case; at the crucial fourth factor, the court must balance (1) the importance of disclosure to the administration of justice against (2) the public interest in maintaining journalist-source confidentiality • the order below prohibiting the publication of anything relating to the settlement negotiations between the parties is quashed.

PRIVATE & INTERNATIONAL LAW: RECOGNITION OF FOREIGN JUDGMENTS Kuwait Airways Corp. v. Iraq (Que. C.A., April 15, 2009) (33145) Oct. 21, 2010 The S.C.C. held:

• the first step is to review the nature of the acts in issue in the English courts in their full context, which includes the purpose of the acts

• it is not enough to determine whether those acts were authorized or desired by Iraq, or whether they were performed to preserve certain public interests of that state • the nature of the acts must be examined carefully to ensure a proper legal characterization

for these purposes and whether the appellants were accused of committing such a crime."

• there was no connection between the litigation and the initial sovereign act of seizing the aircraft; as a result, Iraq cannot rely on the state immunity provided for in s. 3 of the State Immunity Act.

REFUGEES/EXTRADITION: ROMA

Németh v. Canada (Justice) (Que. C.A., January 22, 2009) (33016) Nov. 25, 2010

LEAVES TO APPEAL GRANTED

REFUGEES/EXTRADITION: ROMA

The S.C.C. held:

• the Minister of Justice imposed the burden of showing they would suffer persecution if extradited and by doing so, gave insufficient weight to the appellants' refugee status and to Canada's non-refoulement obligations

• the Minister did not decide whether the serious crime exception applied to the appellants • his decision leaves three critical issues unresolved: how the serious crime exception relates to extradition proceedings, what constitutes a "serious non-political crime" Briefly Speaking • En Bref | February 2011

Gavrila v. Canada (Justice) (Que. C.A., June 30, 2009) (33313) Nov. 25, 2010 Similar summary to that above.

CRIMINAL LAW: COMPETENCE OF WITNESSES There is a publication ban in this case with regard to the name of the party, where the main issue concerns the complainant as a competent witness. R. v. D.A.I. (Ont. C.A., February 19, 2010) (33657) Oct. 28, 2010 CRIMINAL LAW: DANGEROUS DRIVING; CHANGE IN LAW BETWEEN TRIAL AND APPEAL

What is the requisite mental element for a conviction of dangerous driving, and what is the effect of change in law between trial and appeal. Randy Roy v. R. (B.C.C.A., March 16, 2010) (33699) Nov. 24, 2010 11

Supreme Court of Canada Update CRIMINAL LAW: IMPAIRED

FAMILY LAW: SUPPORT; MATERIAL CHANGE IN CIRCUMSTANCES

This appeal will deal with Criminal Code amendments precluding testimony with respect to an accused's alcohol consumption or rate of elimination or a calculation of blood alcohol concentration premised on those factors. Samuel Dineley v. R. (Ont. C.A., November 18, 2009) (33640) Oct. 28, 2010

There is a publication ban in both the case and parties in this case, where the issues concern variation of both spousal and child support, as well as special expenses. L.M.P. v. L.S. (Que. C.A., April 21, 2010) (33749) Oct. 21, 10

CRIMINAL LAW: SENTENCING; ABORIGINAL OFFENDERS

FAMILY LAW: SUPPORT; MATERIAL CHANGE IN CIRCUMSTANCES

Did the sentencing judge give adequate consideration to the circumstances of the accused as an aboriginal offender. Manasie Ipeelee v. R. (Ont. C.A., December 15, 2009) (33650) Oct. 28, 2010 CRIMINAL LAW: SIMILAR FACT EVIDENCE

There is a publication ban on the names of the parties in this case, where the main issue here concerns material change in circumstances. R.P. v. R.C. (Que. C.A., March 12, 2010) (33698) Oct. 21, 2010

There's a publication ban in this case, where the issue concerns the evidentiary link between a prior sexual assault conviction and an alleged sexual assault. L.W.J. v. R. (B.C.C.A., March 9, 2010) (33694) Dec. 16, 2010

Is gay-bashing the promotion of hatred pursuant to a provincial Human Rights Code. Saskatchewan Human Rights Commission v. William Whatcott et al (Sask. C.A., February 25, 2010) (33676) Oct. 28, 2010

The issues in this appeal arise from a fraudulent scheme involving the fictitious sale of heavy equipment, and the HST that was not remitted as required. Ewaryst Prokofiew v. R. (Ont. C.A., June 10, 2010) (33754) Nov. 24, 2010

Where one is arrested and charged with sexual activity with a minor, beaten while incarcerated, and then charges dropped, can one sue the public authorities for various negligent acts, including the violation of one’s right to be kept apart. Johan Sarrazin v. Attorney General of Quebec et al. (Que. C.A., May 21, 2010) (33793) Nov. 24, 2010

CRIMINAL LAW: TAX FRAUD

CRIMINAL LAW: THE 'I-CONSUMED-DRUGS' DEFENCE

HUMAN RIGHTS: PROMOTION OF HATRED

HUMAN RIGHTS: SEGREGATED CUSTODY

LABOUR LAW: CASUAL v. PERMANENT EMPLOYEES Is self-induced intoxication a defence to attempted break and enter, break and enter, assault, and aggravated assault. Tommy Bouchard-Lebrun v. R. (Que. C.A., March 3, 2010) (33687) Oct. 21, 2010 EDUCATION: RELIGIOUS INSTRUCTION

Is a Ethics and Religious Culture program mandatory and enforceable in Quebec schools. S.L., D.J. v. Commission scolaire des Chênes and Attorney General of Quebec (Que. C.A., February 24, 2010) (33678) Oct. 21, 2010 EDUCATION: SCHOOL FUNDING

Are schools in Nova Scotia differentially funded. Halifax Regional Municipality v. Nova Scotia Human Rights Commission, et al (NS C.A., February 11, 2010) (33651) Oct. 28, 2010

In the context of a collective agreement, should vacation entitlement be calculated inclusive of hours worked as a casual employee. Newfoundland and Labrador Nurses' Union v. Her Majesty the Queen in Right of Newfoundland and Labrador, et al (Nfld. C.A., February 19, 2010) (33659) Oct. 28, 2010 LABOUR LAW: INTERPRETATION OF COLLECTIVE AGREEMENTS

How should casual time be counted in the context of a collective agreement. Nor-Man Regional Health Authority inc. v. Manitoba Association of Healthcare Professionals (Man. C.A., May 18, 2010) (33795) Nov. 24, 2010 LABOUR LAW: WAGE PARITY

ENVIRONMENTAL LAW: CCAA

Is the statutory duty to remediate contaminated lands a “claim” under a claims procedure order or the CCAA. Newfoundland and Labrador v. Abitibibowater et al. (Que. C.A., May 18, 2010) (33797) Nov. 25, 2010

Was there wage discrimination against employees a predominantly female group in comparison to that received by a male-dominated group. Public Service Alliance of Canada v. Canada Post Corporation, Canadian Human Rights Commission (Fed. C.A., February 22, 2010) (33668) Dec. 16, 2010

February 2011 | Briefly Speaking • En Bref

Supreme Court of Canada Update LABOUR LAW: WAGE PARITY Similar summary to that above. Public Service Alliance of Canada v. Canada Post Corporation, Canadian Human Rights Commission (Fed. C.A., February 22, 2010) (33669) Dec. 16, 2010 LABOUR LAW: WAGE PARITY

Similar summary to that above. Canadian Human Rights Commission v. Canada Post Corporation, Public Service Alliance of Canada (Fed. C.A., February 22, 2010) (33670) Dec. 16, 2010 MUNICIPAL LAW: TAXES

Should tax rates be premised on the assertion that they bear some relationship to the municipal services actually provided. Catalyst Paper Corporation v. Corporation of the District of North Cowichan (B.C.C.A., April 22, 2010) (33744) Oct. 28, 2010 REAL PROPERTY: PURCHASE & SALE AGREEMENTS

This appeal concerns issues arising from an accepted purchase and sale agreement, where there was not enough time

to obtain a required severance before the closing date. Southcott Estates inc. v. Toronto Catholic District School Board (Ont. C.A., May 3, 2010) (33778) Nov. 24, 2010 TAX: GST INPUT TAX CREDITS

What is the tax situation with regard to input tax credits in relation to a municipal transit system. Calgary v. R. (Fed. C.A., May 21, 2010) (33804) Nov. 25, 2010 TORTS: DEFAMATION

Does the Ontario Superior Court have jurisdiction over six libel actions, and is Ontario a forum conveniens for the case. Richard C. Breeden et al v. Conrad Black et al (Ont. C.A., August 13, 2010) (33900) Dec. 16, 2010 Eugene Meehan, Q.C. is the chair of the Supreme Court Practice Group with Lang Michener LLP. emeehan@langmichener.ca.

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Briefly Speaking • En Bref | February 2011

Bridging the Gap One-On-One with the Hon. R. Roy McMurtry J. Andrew Sprague In December 2010, I had the honour and privilege of sitting down for a one-on-one discussion with the Hon. R. Roy McMurtry OC, O.Ont, QC to discuss some of the changes he has seen in the legal profession since his Call to the Bar in 1958 and to discuss some of his thoughts on the current state of our profession.

As the Hon. McMurtry has been involved in various roles within the legal profession over the span of his career, I knew he would be able to provide me with interesting insights. During his first seventeen years at the Bar, he practised civil litigation and criminal law. In 1975, he was elected to the Ontario Legislature and, from 1975 to 1985, he served as the Attorney General for Ontario. In 1991, he was appointed Associate Chief Justice of the Superior Court and then Chief Justice of that Court in 1994. In February 1996, McMurtry was appointed Chief Justice of Ontario, a capacity in which he served for over 11 years until May 2007. He is currently serving as counsel to Gowling Lafleur Henderson LLP and is the chancellor of York University.

Exponential Growth in the Number of Qualified Lawyers, the Size of Law Firms, Speciality Practice Areas and Salaries

Over the past 50 years, McMurtry has witnessed exponential growth in the number of lawyers who are called to the Bar. In addition, the demographic background of lawyers continues to shift, as more women and visible minorities continue to enter the legal profession. The phenomenon of the national law firm is a relatively recent one. McMurtry recalled when “the biggest of the downtown [Toronto] law firms had 25 lawyers” (and was based solely in Toronto) and “lawyers had more generalist practices”. Over time, however, the degree of specialization has continued to grow, as has the size of law firms and the number of separate geographic offices that each firm has. The degree of specialization today is “impressive”, says McMurtry. The issue of remuneration came up in our discussion. McMurtry recalled that in 1958 the average lawyer’s starting salary in 14

Toronto was $75 per week; however, lawyers in other centres would make a little bit extra (i.e., the going rate in Sudbury was $125 per week).

Mentorship

“When the Bar was smaller in size, the practice of law was less formal and more collegial. Lawyers did not hesitate to ask each other for advice, even if they did not practice within the same law firm”. McMurtry fondly recalled his friendship and the mentee/mentor relationship he had with the late Arthur Maloney, who was a noted defence lawyer. Even though they practised law in different firms, Mr. Maloney took an interest in McMur-

“When the Bar was smaller in size, lawyers did not hesitate to ask each other for advice, even if they did not practice within the same law firm”

try, when the latter was a junior lawyer, and provided him with on going mentorship. McMurtry noted, “it was common in those days for older, more experienced members of the Bar to mentor more junior members”. He observed that today the role of mentorship within the legal profession has regrettably declined. “Many young lawyers are not getting the same court experience that senior members of the Bar obtained when they were junior lawyers”, McMurtry observed. In his view, this has occurred, in part, because fewer cases are being adjudicated in court, a consequence of the rising costs associated with appearing before a judge.

Law: A Helping Profession or a Business?

He went on to discuss how the legal profession has been at a “cross roads for several years now as it attempts to determine whether it is a helping profession or just another form of busiFebruary 2011 | Briefly Speaking • En Bref

ness”. In McMurtry’s view, some of the traditions of the Bar are being lost at the expense of the business of law (i.e., the billable hour). As he lamented that the business pressures of the practice of law are dominating over some of the traditions of the profession, he suggested literature from the United States, which discusses this issue, namely, The Lost Lawyer: Failing Ideals of the Legal Profession by Anthony Kronman, who was the Dean of Yale Law School from 1994 to 2004.

Pro Bono Legal Services

It is apparent that pro bono legal services is an important issue to McMurtry. While he was serving as Ontario’s Chief Justice, he was involved in the creation of Pro Bono Law Ontario. He explained to me that “before a fee for service legal aid program came into existence in Ontario in 1967, many leaders of the Bar would take on pro bono work, such as John J. Robinette, G. Arthur Martin, Arthur Maloney and Charles Dubin”. McMurtry recalled how he took some murder cases on a pro bono basis in his early years of practice and how “it was rare in the 1960s for a murder trial to last longer than five days”. He noted that it would be more difficult for a lawyer to take such a case today on a pro bono basis because trial times have increased, which places additional demands upon a lawyer’s time. McMurtry is proud, and appreciative of, the fact that some members of the Bar have been very giving of their time with respect to pro bono legal services as well as to the Ontario Justice Education Network (OJEN). OJEN “focuses on educating high school students about the importance of the law and reaching out to disadvantaged young people who are cynical about the administration of justice”.

In his opinion, our communities can benefit from the receipt of pro bono legal services and law firms should try to find opportunities for younger lawyers to participate in a certain number of hours of community service, and, in turn, provide these same young lawyers with sufficient credit within their firms for their contributions.

Access to Justice

“The issue of access to justice is the most critical issue facing the legal profession” today, and will continue to be “a major challenge for the profession for the foreseeable future”, says McMurtry.

Recently, McMurtry chaired the Steering Committee of the Ontario Civil Legal Needs Project, an initiative undertaken jointly by the Law Society of Upper Canada, Legal Aid Ontario, and Pro Bono Law Ontario. In May 2010, the committee released the research results from the first comprehensive study of the civil legal needs of Ontarians. This report found that a high percentage of Ontarians felt that they could not afford legal services. For McMurtry this is troubling as “only the very poor (who have access to legal aid) and the very wealthy can afford to go to court”. In effect, Ontario’s middle class are being shut out and being denied sufficient access to justice. Also of concern is the decreasing number of lawyers who are servicing smaller centres and rural communities. As many practitioners from smaller centres and rural communities are nearing Briefly Speaking • En Bref | February 2011

retirement age, and with many young lawyers seeking opportunities in larger centres, Ontarians living in small centres and rural communities will increasingly have a more difficult time being able to access legal services.

Concluding Thoughts

As I was wrapping up our interview McMurtry spoke about how grateful he is for all of the opportunities being a lawyer has given him. He noted that “the legal profession is grappling with tremendously difficult and complex issues”; however, he believes that “the major problems can be addressed”. In his view, we work in a terrific profession. I concur and I am grateful for the opportunity to discuss our profession with one of its great statesman. J. Andrew Sprague is a lawyer with Miller Thomson LLP. He is also a member of the Editorial Board of Briefly Speaking, and is the Public Affairs Liaison for the Information Technology and Electronic Commerce Section of the Ontario Bar Association

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February 2011 | Briefly Speaking • En Bref

OBA Member Beth Symes Appointed Order of Canada The Right Honourable David Johnston, Governor General of Canada recently announced that long time OBA member

Beth Symes has been appointed the Order of Canada. Symes has been a member of the OBA since 1979, and is presently active in the Administrative Law, Constitutional, Civil Liberties and Human Rights, Feminist Legal Analysis and Labour and Employment Law Practice Sections of the OBA. OBA President Lee Akazaki responded to the news of Symes’ appointment stating, "Beth Symes is among those rare trailblazers in whose path so many follow, maybe without their knowing she is the one leading us forward. Her work, so important to the advancement of equality rights for women in the last quarter century, has helped chart a course for all equity-seeking groups in Canadian society. As OBA members, we are so proud she is one of us." When contacted by Briefly Speaking for comment on the December 30th announcement Symes said, “I was thrilled, surprised and humbled that my life’s work advocating for women would be so honoured.”

Authorization Committee and serves on the Task Force for the Retention of Women in the Legal Profession.

Symes has also written and spoken extensively in the areas of administrative law, equality and employment issues. She instructed at Osgoode Hall Faculty of Law in Trial Practice, as a team leader in the Intensive Trial Advocacy Program, taught Economic Regulation in the LLM program at Osgoode and taught Constitutional Litigation for the Faculty of Law at the University of Western Ontario.

The Order of Canada, one of the nation’s highest civilian honours, was established in 1967, during Canada’s centennial year, to recognize a lifetime of outstanding achievement, dedication to community and service to the nation. Over the last 40 years, more than 5,000 people from all sectors of society have been invested into the Order.

Symes practises administrative law and civil litigation in the areas of equality rights, professional regulation, labour and employment law and human rights with Symes and Street, Barristers and Solicitors. She is a graduate of the Faculty of Law at Queen’s University and was called to the Bar of Ontario in 1978. In 1988, Symes was appointed as the first Chair of the Pay Equity Hearings Tribunal. She was a member of the Board of Directors of the Canadian Council of Administrative Tribunals (CCAT), was a founder of the Conference of Ontario Boards and Agencies (COBA) and is a founding member of the Society of Ontario Adjudicators and Regulators (SOAR). She is one of the founding members of the Women’s Legal Education and Action Fund (LEAF) and served on its National Legal Committee.

Symes co-authored Women and Legal Action and Juggling: Women, Work and Parenting and has written numerous articles on administrative law and equality issues. She served on the Board of the Canadian Institute for the Administration of Justice as the first vice chair and the chair of the Membership Committee.

Symes was awarded the Law Society of Upper Canada Medal in 1996 and was the Gordon F. Henderson Lecturer in Human Rights in 2003. She is a Bencher of the Law Society of Upper Canada and is the chair of the Audit Committee, Vice Chair of the Proceedings Briefly Speaking • En Bref | February 2011

OBA | Professional Development

UPCOMING PROGRAMS

Friday, February 25th Half Day

Civil Litigation, Young Lawyers’ Division (YLD)

Your First Civil Trial (YLD) (am)

Friday, February 25th Half Day

Civil Litigation, YLD

Your First Small Claims Court Trial (YLD) (pm)

Tuesday, March 8th Half Day

Administrative Law

Current Issues in Tribunal Adjudication: An Update for Advocates and Members

Monday, March 28th Half Day

Public Sector Lawyers

Public Private Partnerships (P3): What You Need to Know - A Primer Part II

Wednesday, March 30th Half Day

Business Law, YLD

Commercial Agreements (YLD) (am)

Wednesday, March 30th Half Day

Taxation Law, YLD

Tax Litigation Essentials (YLD) (pm)

Thursday, March 31st Half Day

Family Law

When the State has Business in the Bedrooms of the Family: The Intersection between Family Law and Government

Wednesday, April 6th Half Day

Civil Litigation, YLD

Your First Judicial Review (YLD)

Health Law

Mental Health Law in Ontario

Wednesday, April 27 Half Day

Business Law

Corporate Governance Update - Shareholder Activism and Other Developments

Thursday, April 28th Full Day

Labour & Employment Law

10th Annual Employment Law Issues

Monday, May 2nd Half Day

Civil Litigation

Summary Judgment Motions: Persuasive AdvocacyWinning Tactics

Tuesday, May 3rd Half Day

Family Law, YLD

Family Law Fundamentals: Everything You Need to Know About Child Support (YLD)

Friday, May 6th Half Day

Civil Litigation

Strategic Legal Writing

Tuesday, May 10th Half Day

Trusts & Estates Law

Will & Estate Planning Essentials (am)

Tuesday, May 10th Half Day

Trusts & Estates Law

Beyond Will and Estate Planning Essentials (pm)

Thursday, May 12th Half Day

Environmental Law

Environmental Law Issues

Monday, May 16th Half Day

Real Property

Renewable Energy Projects for Real Estate Lawyers

Pension and Benefits Law

9th Annual Pension and Benefits Hot Spots: Essential Updates on Key Legal Issues

Tuesday, April 12th Half Day th

Tuesday, May 17th Half Day Wednesday, May 25th Full Day

Workers’ Compensation Law

Workplace Safety and Insurance Law: Practice and Professionalism

Wednesday, June 1st Full Day

Business Law

MBA Concepts for Lawyers

Friday, June 10th Half Day

Constitutional, Civil Liberties and Human Rights, Administrative Law

Human Rights Update

Programs take place at the OBA Conference Centre 20 Toronto Street, 2nd floor Toronto, unless otherwise indicated. For more information and to register for these or any other OBA Professional Development Programs, please go to www.oba.org/pd

February 2011 | Briefly Speaking • En Bref

Generation Gap

The Generation Gap: Who’s Who? Kyle Magee Generation Y

The Silent Generation

Born between 1979 and 1999, it has been suggested that Generation Y has been coddled since birth and sheltered by overprotective parents. This is likely true, given the majority of Generation Y’ers continue to prize their collections of purple “Participant” ribbons.

This generation was born between 1929 and 1945. Their offices may be readily identified by the abundance of natural light, personal photographs and memorabilia. In the workplace, the Silent Generation ought to be respected and treated with the appropriate deference. However, a counsel from the Silent Generation often has a weakness for sweets, including butter tarts, which can be strategically used by all the other generations to leverage superior results for their client.

Retaining or employing a Generation Y lawyer has risks and benefits. On the downside, they have difficultly with traditional modes of communication and are often exasperated by opposing counsel who indicate their correspondence has been delivered by “Telefax”, as a Generation Y’er is not familiar with this historic means of communication. On the other hand, Generation Y lawyers are typically quick and efficient at research, having never practised without Quicklaw.

Generation X

Born between 1965 and 1978, Generation X’ers are characterized by individualistic attitudes and a subtle distain for authority. These are often the lawyers who refuse to iron their court shirt because to do so would undermine the purpose of the robe. Although untraditional, Generation X’ers are hard workers and effective multi-taskers. In the name of efficiency, they have mastered the no-vowel Blackberry reply, ignoring the fact it takes the reader twice as long to decipher the message. Thx.

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Baby Boomers

More simply referred to as “Boomers”, this generation was born between 1946 and 1964. There is some authority for the proposition that Boomers evaluate themselves based on their work ethic, rather than efficiency, typically measured in hours spent on the job. Accordingly, face time is important for Boomers which is bad news for students and associates.

However, somewhat paradoxically, Boomers will also readily embrace technology in the name of efficiency and particularly enjoy driving with the GPS on full volume to and from familiar locations. Briefly Speaking • En Bref | February 2011

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

Questioning the Impact of Bill 122 Ted Chudleigh It was with disappointment that I read the government’s Bill

122, Broader Public Sector Accountability Act, 2010 which passed third reading on December 2, 2010.

Unfortunately, this government’s tendency to promise accountability and then to walk away from it leaves the adequacy of Bill 122 questionable at best.

In the past year, scandal after scandal have shaken Ontarians’ confidence in this government. Your money, entrusted to the government, has been squandered.

How can we be confident Bill 122 will not follow a similar pattern?

On its face the intent of Bill 122, to improve financial accountability in the public sector, was uncontestable; but, a more detailed examination quickly revealed that Bill 122 fell well short of what is required to ensure value for your tax dollars.

Last year, the eHealth scandal revealed that up to one billion tax dollars were wasted for an electronic health records system that is still not fully operational. Unfortunately, this was not an exception. Subsequent scandals were exposed at the Ontario Lottery and Gaming Corporation (OLG), Cancer Care Ontario and in Ontario hospitals which were diverting front line health care dollars to consultants. Most recently, December’s scandal revealed more waste at the Municipal Property Assessment Corporation (MPAC) where millions of dollars have been paid in untendered contracts, undocumented purchases of goods and services and “promotional gifts” such as golf clubs.

As these scandals unravel, our justice system has become increasingly stressed. Charges have been withdrawn in part due to strained court resources. Court orders have been contravened because hospitals lack the resources to address the mental health needs of offenders who are moved to jails. A lack of court interpreters could see a cases stayed due to delay. These examples are only the tip of the iceberg.

We are left to imagine what the billions of wasted tax dollars could have done to strengthen our justice system.

Regular revelations of such outrageous scandal have eroded public trust. They have exemplified how, over the past seven years, a feeling of entitlement and waste have become entrenched under this government.

Provisions the Local Health Systems Integration Act, 2006, which required a Legislative Committee to review Ontario’s controversial LHINs in March, 2010 were repealed. As I write, the Attorney General and a majority of ‘designated agencies’ have not posted their travel and hospitality expenses on the Internet, despite a government promise they would do so. Ontario PC Leader Tim Hudak has gone further than this government and called for a mandatory “Sunset Review”. This review will require all ministries, agencies, boards and commissions to demonstrate their pubic value and necessity to help ensure your tax dollars support high quality front line services.

The need for improved accountability was also the impetus behind PC MPP Lisa MacLeod’s Bill 39, Truth in Government. It too went further than Bill 122. Among other things, it would have expanded the application of the Freedom of Information and Protection of Privacy Act to improve transparency. It would also have required all public sector bodies to disclose contracts for goods or services over $10,000, travel and hospitality expenses, and grants over $10,000. The government has not undertaken a review remotely similar to a “Sunset Review” and they voted against Bill 39 before introducing their own weaker legislation, Bill 122. Where does this leave us?

Billions of dollars which could have been used to strengthen our justice system have been needlessly misspent. In light of current trends under this government I, for one, lack confidence that Bill 122 will change matters anytime soon. Ted Chudleigh is the M.P.P. for Halton and the Progressive Conservative Critic to the Attorney General.

Now, more than ever, transparency and accountability are needed.

February 2011 | Briefly Speaking • En Bref

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

Remise en question de l’impact du Projet de loi 122 Ted Chudleigh C’est avec déception que j’ai lu le Projet de loi 122, la Loi de

2010 sur la responsabilisation du secteur parapublic du gouvernement qui a été adopté en troisième lecture le 2 décembre 2010.

À première vue, le but du Projet de loi 122, soit celui d’améliorer la responsabilisation comptable du secteur public, est incontestable. Par contre, une vérification approfondie a rapidement démontré que le Projet de loi 122 ne répond pas aux exigences nécessaires pour assurer une valeur à vos impôts. Au cours de la dernière année, scandale après scandale ont perturbé la confiance des Ontariens et Ontariennes envers le présent gouvernement. Votre argent, confié au gouvernement, a été jeté par la fenêtre. L’an dernier, le scandale du cyberSanté a révélé que jusqu’à un milliard de dollars, provenant des contribuables, ont été gaspillés pour l’élaboration d’un système de dossiers de santé électronique qui n’est toujours pas pleinement fonctionnel. Malheureusement, ceci n’était pas une exception. Des scandales subséquents ont été découverts aux niveaux de la Société des loteries et des jeux de l’Ontario, d’Action Cancer Ontario et des hôpitaux de l’Ontario qui dérivaient des fonds destinés aux soins de santé vers des consultants.

Plus récemment, le scandale de décembre a révélé encore plus d’argent gaspillé par la Société d’évaluation foncières des municipalités (SÉFM) où des millions de dollars ont été déboursés envers des contrats sans soumission, envers l’achat non-documenté de biens et services et envers des « cadeaux promotionnels » tel que des bâtons de golf. Alors que ces scandales se découvrent, notre système juridique est devenu de plus en plus perturbé. Des accusations ont été retirées partiellement en raison des ressources épuisées de la Court. Des ordonnances judiciaires ont été enfreintes parce que les hôpitaux manquent de ressources pour s’attaquer aux besoins de santé mentale des contrevenants qui se font relocalisés dans des prisons. Un manque d’interprètes judiciaires pourrait entrainer des cas en sursis en raison des délais. Ces exemples ne sont que de faibles manifestations.

Nous sommes laissés à s’imaginer ce que ces milliards de dolBriefly Speaking • En Bref | February 2011

lars gaspillés, provenant des contribuables, auraient pu faire pour rendre notre système juridique plus résistant.

Ces divulgations régulières de scandales ont rongé la confiance du public. Ces scandales expliquent comment, depuis les sept dernières années, un sentiment de droit et de gaspillage a été inscrit sous le présent gouvernement. Maintenant, plus que jamais, la transparence et la responsabilisation sont nécessaires.

Malheureusement la tendance du présent gouvernement, soit celle de promettre la responsabilisation pour ensuite ne pas s’en tenir, laisse, de façon la plus optimiste, la pertinence du Projet de loi 122 interrogeable.

Les provisions de la Loi de 2006 sur l’intégration des systèmes de santé locale, qui exigeaient qu’un Comité législatif révise le RLISS litigieux de l’Ontario en mars, ont été révoquées. Alors que j’écris, le procureur général et une majorité « d’agences désignées » n’ont toujours pas publiés leurs frais d’accueil et de déplacement sur Internet, malgré leur promesse gouvernementale de rendre cette information accessible. Comment pouvons-nous être confiants que le Projet de loi 122 ne subira pas des conditions semblables?

Le chef du Parti PC de l’Ontario, Tim Hudak, a été plus loin que le présent gouvernement en demandant un réexamen obligatoire. Cette révision exigera à tous les ministères, les agences, les conseils et les commissions de démontrer leur valeur ainsi que leur nécessité afin d’assurer que vos impôts appuient des services nécessaires et de haute qualité.

Le besoin pour une meilleure responsabilisation était également l’élan derrière le Projet de loi 39, Loi de 2010 sur la vérité au sein du gouvernement, de Lisa MacLeod, députée pour le Parti PC. Ce dernier allait plus loin que le Projet de loi 122. Parmi d’autres choses, le Projet de loi 39 aurait élargit l’application de la Loi sur l’accès à l’information et la protection de la vie privée, afin d’améliorer la transparence. Il aurait également exigé de tous les entités du secteur public de révéler tous les contrats de biens et services au-delà de 10 000 $, les frais d’accueil et de déplacement ainsi que les subventions de plus de 10 000 $. 21

Queen’s Park update Le gouvernement n’a pas entrepris une révision qui approche même un réexamen et il a voté contre le Projet de loi 39 avant d’introduire leur propre loi implicite, le Projet de loi 122. Où sommes-nous dans tout cela?

Des milliards de dollars mal gérés qui auraient pu être utilisés pour rendre notre système juridique plus résistant. À la lueur des tendances du présent gouvernement, pour ma part, je ne suis pas confiant que le Projet de loi 122 changera ces situations dans un futur proche. Ted Chudleigh est Député pour la région de Halton et le Porte-parole de l’opposition pour le Procureur général.

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Advocacy in action

Attorney General Announces Family Law Reforms at OBA Four Pillars of Family Law Reform to Support Every Court in Ontario On December 9th, the Attorney General of Ontario visited the OBA Conference Centre to announce that early information sessions, mediation services and information and referral coordinators will be provided in every family court in the province. All of these services form part of the four pillars of family law reform that were recommended in the Home Court Advantage Report co-authored by the OBA. The Report was highlighted in the December 2010 issue of Briefly Speaking. OBA’s Submissions on Privilege and Pension Reform Yield Legislative Amendments

In both discussions with the Ministry of Health and a submission to the Standing Committee on Social Policy, the OBA identified the need to protect privileged information from the disclosure requirements of the new Public Sector Accountability Act. We advocated for an amendment to accomplish this protection. The OBA’s position was accepted and the Act, which was passed in December, included an exemption for information subject to solicitor/client, litigation and settlement privilege. The OBA has been invited to work with government on the formulation of the relevant disclosure directives that will be made under the Act. The OBA’s submission can be found at: http://www.oba.org/En/publicaffairs_en/PDF/OBABill122Submission.pdf The OBA’s Pensions and Benefits Section made a submission to the Standing Committee on Finance and Economic Affairs regarding Bill 120, Securing Pension Benefits Now and for the Future Act, 2010 and met with the Ministry of Finance to discuss proposed changes to the Bill. Several of the OBA’s suggested amendments were accepted and formed part of the Act, which was also passed in December. The Submission can be found at: http://www.oba.org/En/publicaffairs_en/ PDF/OBASubmission-Bill120.pdf

OBA President and Other Representatives Meet with the Honourable R. Roy McMurtry on Civil Rights Issues A multi-section OBA working group, including representatives from the: Constitutional and Human Rights; International Law; Civil Litigation; Criminal Law; Briefly Speaking • En Bref | February 2011

Public Sector Lawyers; and Municipal Law sections, as well as the Young Lawyers Divisions, prepared a submission for Mr. McMurtry’s review of the Public Works Protection act (the Act under which the G-20 security regulation was made). On December 20th, President Akazaki and representatives of the working group met with the former chief justice to discuss the OBA recommendations. Mr. McMurtry’s report is expected early this year. The OBA submission can be found at Working Groups and Submissions Underway:

• A multi-section working group is preparing a submission to the Law Society of Upper Canada concerning LSUC”s proposed changes to the Rules of Professional Conduct to address limited-scope retainers;

• The Criminal Law Section is working on a submission to ACJO Griffiths concerning proposed changes to the Ontario Court of Justice criminal proceeding rules; • The Insurance Law and Civil Litigation Sections will be preparing a submission for the Civil Rules Committee regarding rules providing for discounts and interest in personal injury cases.

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Just a sample of some of the upcoming Section programs “Ethical Issues for Franchise Lawyers”– Franchise Law “ Update on Costs and the Rules of Civil Procedure”– Civil Litigation “Work Reintegration Event”– Worker’s Compensation

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for a complete listing of programs

Just For Laughs

Recollections in a Rearview Mirror Marcel Strigberger

I was called to the Bar in 1974. I guess that makes me a baby boomer. I have been pondering the changing landscape and some of the following thoughts come to mind.

Q.C. or not Q.C.

Remember these? I don’t know if the honour came with any perks. In fact there was one downside. A freshly minted Queen’s Counsel had to toss out his cotton robe and buy a silk one. These cost a fortune. Good.

Q.C.s however did get to sit at the front of the courtroom, on a bench reserved for these distinguished advocates.

But were they all advocates? Maybe initially, in the days of Lord Coke. I knew many Q.C.s who were actually commercial/real estate lawyers. What did their reference read like? “I highly recommend James Campbell Dartmouth for appointment as Queen’s Counsel. He would look just great sitting in the front row at the Registry office.” I guess now we’ll all just have to hang onto those cotton robes.

Civility Now

I cannot say that civility amongst lawyers has eroded. If anything, I would say it has improved likely because the issue has become so prominent. For example in 1974, to bring a motion, all lawyers had to do was serve a Notice of Motion on two day’s notice. We did not have to clear the date with opposing counsel.

The other side’s student would generally appear at your office and ask you to admit service on the Notice. This practice sometimes psyched out the student, as some irate lawyers would shoot the messenger. I once served a notice for summary judgment on a senior counsel, a Q.C. actually. He took one look and said, “Does your principal think I don’t have a triable issue? What kind of moron do you work for? Do you know who I am?

I really did not know the answer to any of these three questions. I go a bit flustered and thought it prudent not to ask the guy to admit service. My decision to waive this request was in part determined by that thick edition of Salmond on Torts in his hand, which he seemed ready to propel it in my direction.

It’s Research In Toronto I would go to the Great Library.

That library had an interesting method of advising lawyers whether a decision was still binding. Lawyers would make pencil notes on the pages of the DLRs, CCCs etc, alerting others of appeals. The note might read, “Reversed by C.A. March 13, 1947.” I did, however, wonder about some of these entries. One looked a lot like the desperate writings of a shipwrecked sailor’s message in a bottle. It read, “Appeal allowed; tell my wife I love her. George R. Henderson Q.C.” At least George Henderson Q.C. did spend his time in court.

As for the Ontario Reports, (remember these?), the court’s decisions were reported months after pronouncement. Imagine the newspapers doing this. An election result would look like, “Stephen Harper wins minority government six months ago.”

Technology

Before computers hit the office, the workhorse of a law practice was a good typewriter. (Remember those?) If the secretary (as they were once called), made an error, she would apply the white out, let it dry, and continue. In 1977, I was the first to buy an IBM Selectric with auto correction, namely an internal erasing tape. Upon delivery, the IBM man tested it. A crowd gathered. The scene looked like that historic morning in 1903 at Kitty Hawk. The IBM guy misspelled, “Bananna” and then backtracked and corrected it in a split second. An audible “ahhhh” filled the room. In all the excitement I neglected to ask the IBM man about Blackberries.

No Trial for You

What has not changed is the inability of lawyers to be able to count on having their cases heard when scheduled. All the technology has failed to solve this problem. The one exception used to be in Toronto’s County Court (remember it?) where a gentleman called Bill Sheehan was trial co-

February 2011 | Briefly Speaking • En Bref

Just For Laughs ordinator. You always got reached as scheduled. He worked his trial list using a blackboard and index cards. It worked like magic. At around 3:30 the day before trial he’d call you and say, “Sheehan speaking.” He’d give you the time, courtroom number and name of the judge. He was so efficient that if Nick the Greek were taking bets, you’d have to give Nick 25-1 odds if you bet on Bill Sheehan delivering.

Oscar Wilde could easily have added a Bill Sheehan confirmation call as a third certainty, after death and taxes. Where do we go from here on court efficiency? I think I’ll leave the solution to that one with the Generation Xs, Ys or Zs. I’m just a baby boomer. Marcel Strigberger is a humourist trapped inside the body of a civil litigation lawyer – see www.legalhumour.com

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Briefly Speaking • En Bref | February 2011

Generation Gap

Nicholson & Son Following in Father’s Footsteps

Briefly Speaking recently sat down with Canada’s Minister of Justice and Attorney General of Canada, Rob Nicholson, and his son Peter to talk about the legal profession from the perspective of one generation to another. Peter Nicholson is a graduate of the Faculty of Law at the University of Western Ontario and was called to the bar last year. He is currently an associate at Chown Cairns LLP. Peter’s father attended law school at the University of Windsor, Ontario and was called to the bar in 1979. He was first elected as the Member of Parliament for Niagara Falls in 1984.

Minister, what were your first thoughts when Peter told you he was going to go to law school?

I was very proud of Peter’s decision to go into law. I believed that he would be a natural for it, after growing up in our family, hearing so much about the law and legal issues over the years,

What do you think Peter’s best class was–and why?

I believe that business law was a great course for Peter, in as much as he obtained a Bachelor of Commerce degree from Queen’s University. I think it was a good fit and coincided with his long-standing interests.

How do you think law school was different for Peter, from when you attended?

There was certainly a great emphasis on the Charter when I attended, particularly with respect to criminal and constitutional law. This is certainly a change. On the other hand, most of the courses and approaches are very similar. That’s one of the great characteristics of our legal system. It wasn’t invented overnight.

When you were in law school, what was your worst/ most challenging class?

Some of the concepts in property law, such as shifting trusts and the rule in Shelly’s Case, I remember as being challenging; I was very fortunate to have had outstanding professors throughout my time at law school at the University of Windsor. 26

Now that Peter is a practising lawyer, what do you think is the biggest change in the profession from when you were in law school? I believe that more specialization is required. I think it would be impossible for a lawyer to practice in all areas of the profession and the process and emphasis on specialization has been a continuing one over the last 30 years.

What do you think are some of the challenges a young lawyer faces today that might be different from when you were starting your practice? I think the challenges are similar to the ones that I faced. Certainly, time management has always been an issue, balancing commitment to the profession and to family life.

When you were in law school, what would you have said if someone told you that you would one day be Canada’s justice minister and the federal attorney general? I would thank them for the compliment. It’s been a dream of mine since elementary school to be the member of Parliament for Niagara Falls, and my success in political life underscores the great opportunity that exists for all Canadians who want to make a contribution to this great country.

In closing, what is the one piece of advice you gave Peter that would you give to all young lawyers and law students about to embark on their careers? Maintain a balance, keep a perspective on your career and life, and above all, be true to yourself.

Peter, now that you are a practising lawyer, is the profession what you thought it would be? Growing up, I viewed the profession as an opportunity to help others and as a way to contribute to the community. Thankfully, my opinion, since then, has not changed. February 2011 | Briefly Speaking • En Bref

How do you think law school was different for you than when your father attended? Well, from a practical standpoint, technology is much more prevalent in today's classrooms then in my father’s time. Professors are increasingly using PowerPoint presentations and nearly every student has a laptop.

What do you think your dad's best class was in law school, and why?

2011Nominations:OLG_winter_final 12/7/10 11:12 AM

Definitely constitutional law. Constitutional law provides a basic understanding of how our country was created and how it developed over the decades. I believe this course would have been a nice fit for my father's love of history and political science.

What was your worst or most challenging class in law school?

While I wouldn't describe it as my worst class in law school, my most challenging class was certainly income tax law. I worked harder in this class than any other class in law school. Not surprisingly, it was an extremely rewarding learning experience.

Did you have to study or present on any of your father's legislation during law school? If so, what was that like? I was involved in various discussions involving recent legislative changes and in particular, the government's law and order agenda. I found these discussions thought-provoking and informative and always approached such debates with an open-mind. I found them to be great learning experiences.

What are some of the challenges a young lawyer faces today that might be different from when your father was starting his practice? Given the nature of legal practice today and its increasing complexity, young lawyers naturally make the decision to specialize very early on in their careers.

I think it's especially important for law students to seek out an articling experience/employment where they can obtain meaningful career advice from more senior members of the bar and try out various areas of law so ultimately, they can pursue a field of law that best fits their interests and abilities.

You chose to start your practice away from the bright lights of Bay Street. Tell us what you enjoy most about starting your practice in the Niagara region.

I am very pleased with my decision to return to the Niagara area. The practice of law can involve long hours; as such, I think it's especially important to practice in an area that you enjoy. Similar to my father, I grew up in Niagara Falls and quickly developed an appreciation for the quality of life and opportunities that the Niagara Region has to offer, I also have the added benefit of being close to family and friends.

Did your father attend your convocation?

My father attended my Call to the Bar and law school graduation ceremonies, along with various other members of my famBriefly Speaking • En Bref | February 2011

ily. I was proud to have them there to share in those special days with me.

Growing up with a “politically famous” father, do you ever see yourself going into politics? I spent quite a bit of time at my father's law office growing up and always envisioned myself entering the practice of law. I believe the practice of law is a good fit for my personality, interests and abilities. While I have tremendous respect for our political system and enjoy engaging in political discussions and followPage 1 ing recent developments in the news, I have no plans to enter politics myself.

2011 Nominations Requested Law Society Medal The Law Society Medal was established in 1985. The purpose of the award is to recognize outstanding service within the profession, whether in a particular area of practice, the academic sphere or in some other professional capacity. The award may be made for devotion to professional duties over a long period or for a single outstanding act of service in accordance with the highest ideals of the legal profession.

Lincoln Alexander Award The Lincoln Alexander Award is awarded annually in recognition of an Ontario lawyer who has demonstrated long-standing interest and commitment to the public and to the pursuit of community service on behalf of residents of Ontario. The award was created in 2002 in honour of The Honourable Lincoln M. Alexander, P.C., C.C., O.Ont., Q.C., former Lieutenant Governor of Ontario, Member of Parliament, federal Cabinet Minister, and 2002 Law Society Medal recipient, to reward his dedication to the people of Ontario and the legal community.

Laura Legge Award In May 2007, Convocation approved the establishment of the Laura Legge Award. This award is to be given annually to a female member of the Law Society who has exemplified leadership within the profession. Laura Legge was a member of the Law Society of Upper Canada for more than 60 years. She became the first elected female bencher, the first woman ever to serve as Treasurer and was a senior partner of the firm of Legge & Legge. This award will continue to commemorate her exemplary professional career, her mentorship of other lawyers, her long-standing service to the Law Society and her admirable contribution to community service.

Nominations for these awards should be submitted in writing with a current curriculum vitae and letters of support to: Office of the Treasurer, Osgoode Hall, 130 Queen St. West, Toronto, Ontario M5H 2N6 Those nominated in past years but not recognized may be nominated again. The deadline for nominations is February 25, 2011.

spotlight on sections

Student Division Crossing the Line From Classroom To Courtroom Julia Lefebvre Who We Are The OBA’s Student Division (SD) is a group of dedicated soonto-be-lawyers representing all six Ontario law schools as well as the Southwest, Toronto and Ottawa areas. Each law school has a student ambassador who acts as a liaison between the OBA and the student population, with the exception of the University of Ottawa, which has an ambassador for both the civil and common law programs. Articling ambassadors represent Southwest Ontario, Toronto and Ottawa regions.

What We Do

The SD works hard to ensure the student voice is heard at Council and Board of Directors meetings and strives to represent the interests of over 2,400 OBA student members.

Law student and articling ambassadors play a vital role within their legal communities and host various events throughout the year. This year, our major goal is to encourage a closer relationship between students and the local bar. Over the next few months, law student ambassadors will chair Life After Law School panel discussions at each school. Local lawyers will speak about the experience of moving from the study of law to the practise of law and help students understand what to expect after graduation.

and outs of motions court, to tips on effective practice management, the event leaves students better prepared to tackle the challenges of articling.

OBA students are able to meet lawyers and learn about practice areas they might pursue by enrolling in two free practice sessions. Students are also automatically enrolled in the Young Lawyers’ Division. With the demand for articling positions growing greater every year, participation in practice sections can provide networking connections which may go a long way to securing meaningful future employment.

How To Get Involved

Law students interested in joining the Student Division Executive should watch for the call for candidates coming up at the end of January. In the meantime, ask your ambassador about events in your community. Check out the Student Division section of the OBA website for details: www.oba.org/students. Julia Lefebvre is the chair of the Student Division Executive and Student-at-Law at Lenczner Slaght Royce Smith Griffin LLP.

To assist in the transition from classroom to courtroom, the OBA runs Excelling at Articles in Toronto, London and Ottawa. Each year, at the end of August, hundreds of students attend the highly informative and entertaining sessions. From the ins 28

February 2011 | Briefly Speaking • En Bref

Generation Gap

“Y” Enter Practice in Today’s Market Christopher Williams & Trevor Branion

Will we witness the “lost generation” that is occurring in the U.S.?

he global recession has had a resounding impact on the world’s economy. The legal profession has not been immune. In the United States, the results have been particularly noticeable, especially in recruiting volumes for new lawyers. South of the border, the NALP, The Association for Legal Career Professionals, estimates that the recruitment of new lawyers is not expected to show signs of recovery until the graduating class of 2012. Can the same be assumed here in Ontario? Will we witness the “lost generation” that is occurring in the U.S.?

Generally, Ontario lawyers have weathered the recession relatively well. Although decreased workflows and downsizings occurred, Ontario lawyers did not experience the massive bloodletting seen in other international markets (e.g. London, New York, etc.). As things improve, law firms are hiring again and it appears that the profession as a whole is recovering. What, however, are the residual effects on those law students who graduated during the recession?

During the economic downturn, applications and admissions to Ontario law schools increased. Perhaps, Generation Y envisioned staying in school and entering the legal profession (one traditionally seen as offering strong career stability and compensation) as a way to combat the soft economy. The Ontario Law School Application Service (“OLSAS”) shows that in 2010, the number of Ontario law school applicants rose to 4,609 from 4,091 in 2009 and 4,071 in 2008. While not as dramatic an increase, the OLSAS numbers indicate actual registrants increased to 1,405 from 1,350 in 2009 and 1,287 in 2008. Most law students complete articles after they graduate from law school. Despite an increase in articling candidates flowing from increased registrations, the articling placement rates remain high, albeit with a slight reduction from pre-recessionary years. The most recent Law Society of Upper Canada Placement Report found that 93.1% for the 1,484 candidates in the 2009 graduating class secured articles. By contrast, between 2003 and 2006 and prior to the global recession, the placement rate fluctuated between 94.8% and 98.3%.

Briefly Speaking • En Bref | February 2011

Securing articles is not, however, an accurate measure of postCall employment. A clearer barometer of market trends comes from hire-back statistics and employment numbers upon Call. These numbers initially appear sobering, but when compared with historical data the statistics are not as dramatic. Times are tough, but not as bleak as might be expected. Law is a competitive profession and little has changed in that regard.

The Law Society of Upper Canada’s annual Placement Report, includes the results of a voluntary survey (with a consistently high response rate) determining employment rates as of the Call to the Bar (either by hire-back or otherwise). The most recent Report shows that for the last three years there has been a

“The statistics show a large number of 2010’s new lawyers were unemployed at their date of Call”

steady decline in the number of articling hire-backs: in 2008 it was 49.4% (before the effects of the recession were fully felt); in 2009 that number was 44.3%; and, in 2010, it fell to 42.8%. While the numbers may seem low, it must be borne in mind that, by comparison, the pre-recession hire-back rates for 2006 and 2007 were 49.1% and 49% respectively.

The Law Society Report also highlights annual employment percentages as of Call date. In 2010, that percentage was 55.5%, down 2.1% from 2009. In 2008, the employment statistic was 65.7%. While the drop between 2008 and now is significant, it also needs to be noted that the average percentage between 1995 and 2008 was also 65.7%. This average excludes the anomalous “guaranteed hire-back” years of 2001 and 2002.

Another indicator of market strength for new Calls (at least in Toronto) is the Hireback Watch, an online survey conducted 29

Brevets en demande Dans un marché ultracompétitif, les compagnies qui misent sur l’innovation doivent être promptes à protéger leur propriété intellectuelle.

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tions, as we understand the challenges young lawyers face and by Melissa Kluger and the staff of Precedent Magazine. The surle domaine du cancertimes. qui a chercheuse dansway les major technologies de l’information. était unehire-back coïncidence, know that a little help goes a long during uncertain vey has monitored numbers dans for the Toronto law firms mais over the past two years. The 43 respondents to the changé de carrière pour le droit, et qui L’innovation est le moteur de la nouvelle le jour où Victor So, is the current marketplace particularly dire for newly 2010 survey advised that 296 out of 443 articling students dirige maintenant la numbers division de biotechéconomie, Victor Butsky.minted Et les Generation comButsky nous48a students accordé opting Y lawyers? While the indicate that were hired back, with out fromselon hire-back. the market is softer than it was pre-recession and a 10% drop This provided a survey-wide hire-back rate of 66.8%, an innologie et de pharmaceutique chez Bereskin pagnies qui ne protègent pas leur propriété une entrevue sur le rôle in employment for new Calls is significant, the historical data crease from 61% in 2009. Parr, àshow Toronto. intellectuelle risquent d’être laissées essentiel du droit des brevets dans la noufor the sur lastles fifteen&years that the marketplace has traditionally been challenging and competitive for newleCalls. This The statistics show a large number of 2010’s new lawyers « Pour les petites compagnies, financelignes de côté dans un environnement glovelle économie du savoir, la Cour fédérale may offer little consolation for those who are currently unemwere unemployed at their date of Call. It is not surprising, ment est le nerf de la guerre, fait-elle remarbal ultracompétitif. du Canada a rendu imporployed, but it should add a measure of reassurance that the Ontherefore, thatune legaldécision recruiters receive numerous applications tarioaux legalplus marketquer. remains from new Calls seekingsont to secure employment. Branionn’échappe WilEllessubstantially ne peuvent consistent. même pas se rendre CetteAtréalité pas tante : les procédés d’affaires brevetaliams, approximately 30% of the curriculum vitae received in au stade des essais cliniques sans argent, et grandes multinationales : « Les IBM, les bles en droit canadien. the last year were from new Calls. La méthode en question était le proces-

Sony, les Samsung, sont tous des deman-

The abundance of new lawyers in the market, firms’ resource deurs de brevets à grande échelle », note sus en « un clic » de amazon.com, pour les commitments to assimilating those lawyers who were hired Matthew Zischka, un ingénieur électrique achats en ligne. s’agit certainement back, and «theIl premium recruiters charge for their placement services, combine to make it difficult for recruiters to place unet associé chez Smart & Biggar à Toronto. d’une clarification bienvenue », a commentested new lawyers. At Branion Williams, we meet with new il n’ytoaplace, pas que té Me Butsky, un ingénieur chimique devenu Calls regardless. Although new Calls may beMais difficult weles géants du monde are happy to provide career advice and search strategy suggesdes affaires qui bénéficient du système, avocat, et qui a fondé la firme de Toronto

Deeth Williams and Wall, qui se spécialise

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Branion Williams is a legal recruitment firm servicing law firms, public entities and in-house legal departments. www.branionwilliams.com Même chose pour les universités. « Elles

elles n’ont pas appliqué pour un brevet. »

n’ont pas nécessairement les ressources ni les infrastructures pour mettre un produit en marché, explique l’avocate. Mais les grandes compagnies pharmaceutiques ne

CBA ANNOUNCES • L’ABC ANNONCE L‘AABC change d’assureur pour son programme d’assurance auto et habitation

CBIA moves to new insurer for Home & Auto program

ffective Jan. 1, 2011, The Personal General Insurance Company (The Personal) will replace TD Insurance Meloche Monnex (Meloche Monnex) as the insurer of The Canadian Bar Insurance Association (CBIA) sponsored Home & Auto Insurance program. CBIA believes that members could pay substantially less for home or auto insurance because of its negotiated rate discounts. Members can also benefit from exceptional customer service, CBIA’s involvement if assistance is ever required, and the ability to share in positive financial results that exceed the requirements of the program. Members with insurance under the old program with Meloche Monnex or through a different insurer are encouraged to contact The Personal for a comparison quote on any policies renewing on or after Jan. 1, 2011. Members who want to wait can give The Personal their current policy expiry date and they’ll be contacted 60 days prior to their 2011 renewal with a reminder that it’s time to get a quote. Members who obtain a quote or provide their expiry date before June 30, 2011, will be entered into a draw for a deluxe trip for two to see the 2012 Olympics in London, England. Call 1-877-314-6274 or visit barinsurance.com/homeauto.

compter du 1er janvier 2011, La Personnelle, assurances générales inc. (La Personnelle) remplacera TD Assurance Meloche Monnex à titre d’assureur du programme d’assurance auto et habitation parrainé par l’Association d’assurances du Barreau canadien (AABC). L’AABC est convaincue que vous paierez des primes beaucoup moins élevées pour votre assurance auto et habitation grâce à nos rabais négociés. Les membres pourront aussi bénéficier d’un service à la clientèle exceptionnel, de notre assistance, et de la possibilité de partager les résultats financiers positifs qui surpassent les exigences de ce programme. Que vous ayez une assurance en vertu de notre ancien programme avec Meloche Monnex ou par le biais d’un autre assureur, nous vous incitons à communiquer avec La Personnelle pour obtenir une soumission comparative sur vos polices arrivant à échéance le 1er janvier 2011 ou après. Ou encore, soumettez votre date d’échéance à La Personnelle dès aujourd’hui et ils vous enverront une note amicale 60 jours avant votre renouvellement de 2011 pour vous rappeler qu’il est temps d’obtenir une soumission. Les membres qui obtiennent une soumission ou qui soumettent leur date d’échéance avant le 30 juin 2011 seront éligibles pour participer au tirage d’un prix : un voyage pour deux aux Jeux olympiques de Londres 2012. Composez le 1-877-314-6274 ou visitez le www.assurancebarreau.com.

N AT I O N A L

December 2010

February 2011 | Briefly Speaking • En Bref

In Memoriam

Richard Bruce Lawson, Q.C. As Remembered by Lynne Lawson From a young age Bruce dreamed of being a lawyer, and pursued that goal with commitment and passion. After attending the University of Toronto and Osgoode Hall Law School, he was admitted to the Law Society of Upper Canada in 1953. In 1956, he became a founding partner of Bassel, Sullivan, Holland and Lawson. After being appointed Queen’s Counsel in 1965, he became a founding partner of Lawson, McGrenere, Wesley, Jarvis & Rose in 1978. He was an OBA member, chairman of the Bench and Bar Committee of The Advocate’s Society and a representative of the Society on the Bench and Bar Counsel. He also taught in the Law Society’s and The Advocates Society’s continuing education programs. As a fine mentor, he demanded excellence from his associates, demanding nothing less from himself.

His success was founded upon his knowledge of the law, attention to detail, hours of preparation, and the ability to clearly identify and concisely state issues. He had a fine legal mind and was always one or two steps ahead. He was a formidable opponent. His colleagues sought out and relied upon his sound advice

and good counsel. His reputation as a trial lawyer garnered respect from Bench, Bar and the wider insurance industry.

Bruce was more than just a skilled barrister. He was a man of his word, known for his fairness and integrity. Though often reserved, he had an extremely dry, funny wit.

Bruce would not have been able to enjoy such a gratifying professional life without the love and support of his wife, Marian, and his three children, Lynne, Doug and Nancy, who mourn his passing. Lynne Lawson, Daughter

Claude Renwick Thomson, Q.C. As Remembered by Lee Akazaki He charmed our world of law, with elegance, compassion and intelligence.

At the urging of the Honourable Bud Estey, Claude Thomson became chair of the Administrative Law Section of the CBAO (now OBA). As chair, Thomson was instrumental the association’s contribution to the creation of the Federal Court of Canada. He rose within our ranks to become national president of the CBA in 1984, and later rose to prominence beyond our shores as president of the International Bar Association in 1993. The Bar will remember Thomson for his leadership. Most of all, he stood as a beacon of hope for a profession mired in local and day-to-day challenges. His adventurous spirit and love of nature took him and his fishing rod to far-flung vistas. He would return home to Ontario with the message that the way we do things here does not have to be the only way. Asked what advice to give to a litigation lawyer starting out in practice, Thomson replied, “The single most important quality of a top advocate is a well-earned reputation for integrity. That reputation will help attract clients, allow one to engage in productive and efficient dealings with other members of the profession, and perhaps most importantly, will help to pry open the sense of justice in the most closed-minded judge.”

Briefly Speaking • En Bref | February 2011

Thomson graduated from Osgoode Hall in 1958 and practised for many years as senior litigation counsel with Fasken Martineau. He later became an internationally-renowned commercial arbitrator and mediator. Along the way, he stopped to collect numerous honours, including the World Lawyer Award and a Doctor of Laws from the Law Society of Upper Canada.

Mr. Thomson is survived by his adoring wife, Rosemary, his five children and their spouses, as well as 11 grandchildren.

Remember Claude Thomson. He was the mentor we all wanted, and strive to become.

Lee Akazaki, OBA President

Generation Gap

Civility v. Incivility The A-Hole Factor in the Practice of Law Eugene Meehan, Q.C. The Choice is Ours Everything we say, every action we take, is a matter of personal or professional choice. When someone says or does something negative to you, how you react is up to you—you have that choice. It’s always up to us—whether in our law offices, at home, or out in the street. We can hold the door open for someone, we can take a moment to check in on a younger colleague who’s having a rough time on a file, we can empty the dishwasher, we can get to know the names of the cleaning staff—or we can just walk past everything—because we’re busy; we’re important. We get a ‘I’m-shocked-and-appalled-and-will-report-you-to-the-LawSociety’ letter from the other side, and we can write the same back—or, simply acknowledge receipt, or do nothing. The choice is always ours, and all choices have consequences.

My Theory

My (dual) theory is this:

• Every single choice we make has consequences—so choose well.

• Don’t be civil just because it’s the right thing to do. Be civil because it’s the strategic thing to do.

A couple of recent examples of incivility I was on the personal receiving end of tell me civility/incivility isn’t an artsy fartsy concept—it’s something we live with daily:

• I send some draft motion materials to the other side for their consideration before filing, and the response I get back: F*** you (the individual unasterisked it for my personal benefit). • I put out my hand to opposing counsel before a Court of Appeal hearing, and wish them the best—the other counsel pulled their hand back like I have a communicable disease.

Getting Practical: Ten tactical techniques that will help you stay civil in the face of incivility 1. To most judges, bad behaviour makes bad advocacy

Points are won by being personally attacked, and afterwards standing your ground, saying little or nothing, and instead of responding to the attack, responding only to the issues. 2. Incivility has a price

In the case of 1013952 Ontario Inc. et al. v. Sakinofsky, Rosso, Lawyers Professional Indemnity Company et al., (January 15, 2010), the Ontario Superior Court gave a costs order of $25,000 (inclusive of fees, disbursements, and GST) on the basis that “substantial indemnity costs are reserved for cases in which the court demonstrates its disapproval of the party’s conduct”, concluding “this is one of those rare cases”. 3. Be flexible

Make efforts to avoid scheduling conflicts. Agree to reasonable requests for scheduling changes. Do not attach unfair conditions etc. etc. Remember: what goes around comes around. You smack someone today, you’ll get smacked later. One day you’re the pigeon, next day the statue. 4. When someone’s talking over you

When a lawyer consistently talks over you, wait until they take a breath, then say: Listen, let’s make a deal: when you’re talking, I’ll listen and not interrupt; but when I talk, the deal is you too listen and not interrupt. If, when they don’t (inevitably) abide by the deal, simply remind them (on the record). 5. When you get shouted over

When a lawyer I know gets shouted over in discoveries her standard response is to say on the record: Shouting your quesFebruary 2011 | Briefly Speaking • En Bref

tions and your responses doesn’t give the force of your statement additional weight beyond that of additional noise. Madame Reporter, we’ll take a 10 minute break so Mr. X may compose himself, and walks out with the client. And the transcript so records. 6. Preparing for objections/preparing to object

Another lawyer I know tries to figure out in advance each objection he thinks the other lawyer will make during the discovery/exam-on-affidavit, whether his client is being examined or vice versa, whether the objections are polite or impolite, then types his detailed responses into his laptop, and when the objection comes, he reads it (with case names, citations, quotes, name(s) of judge(s)) into the transcript. When the inevitable motion to produce/answer comes, the transcript always makes him look like a star. When appropriate he asks for costs, sometimes on a personal basis (again, where the behaviour is particularly uncivil and intemperate), and sometimes gets them. 7. Responding to extreme hostility and baiting

Respond to extreme hostility and baiting—as one Alberta judge did when called a mother******* b*****d by an accused— with “lucky guess.”

other lawyer (or perhaps a judge) will say to you: “Mr./Ms. ____, I have read your material and I must tell you I am none the wiser” – just so you can respond: “Perhaps, Your Honour, but certainly better informed.” 9. Never respond in kind

Remember the two Pig Rules:

Pig Rule #1: Never wrestle with a pig — you only get dirty, and the pig enjoys it.

Pig Rule #2: Never try to teach a pig to dance — it wastes your time and it only annoys the pig. 10.Take your Mother’s advice

My mother was right 50 years ago when I was eight (me, not my mother): Eugene, if you’ve nothing nice to say, don’t say it. Fifty years later, as a strategic response to incivility, it still works.

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

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Circuiting Toronto Masters to Central East and Central West Rule 76 Amendments Get Some Help Audrey P. Ramsay and Brian M. Bangay

The Ontario civil justice system has recently undergone significant changes; the most heralded being the amendments to the Rules of Civil Procedure, which signified, arguably, the most comprehensive changes since 1985. On the heels of those changes, however, came other initiatives with less fanfare to cope with anticipated consequences of civil justice reform. One such initiative was the introduction of a pilot project involving circuiting Toronto Masters to the Central East region and Central West region.

The Pilot Project

The pilot project was initiated in the spring of 2010, largely in response to amendments to rule 76, the Simplified Procedure regime. It will run until June 2012. The amendments to rule 76 may result in an increase in cases brought pursuant to the Simplified Procedure. Effective January 1, 2010, the monetary jurisdiction of rule 76 was increased from $50,000 to $100,000; two hours of pre-trial examination for discovery was permitted, and the right to discovery motions granted. At the moment, simplified procedure includes claims between $25,000 and $100,000. According to Chief Justice Heather Smith, rule 76 is aimed at facilitating summary trials. She notes the project was initiated to address changes to the simplified procedure, and the anticipated increase in rule 76 proceedings. Chief Justice Smith commented that: “the goal of the pilot project is to promote efficient, effective and affordable civil proceedings under Rule 76 of the Rules Civil Procedure.” It is not surprising that Central East and Central West would be selected for the pilot project. The Court Services Division Annual Report 2008-009 noted that the population growth in Central East was one of the highest in the country, increasing at a rate of 15% over the preceding 5 years as compared to the provincial population growth average of 6.6%. The same report indicated the Central West Region “has the highest population of the seven Court Services Division regions.” Additionally, in a communiqué entitled “Judicial Resources”, the Ministry of the Attorney General’s website cites Statistics Canada to show that between 1996 to 2006, while the population in some locations have remained constant or is decreasing, the populations in other areas such as Barrie (31%), Brampton (21%), and Newmarket (15%), to name a few, have increased significantly.

Rationale for the Pilot Project

Chief Justice Smith commented on the rationale for the pilot project in these selected sites. She states: 34

“The Central East and Central West regions are two of the busiest regions in the province, with ever-expanding demographics, and which already have a high volume of simplified procedure cases. They are both judicial regions where civil matters are not subject to mandatory mediation. With the recent amendments to Rule 76, the Court anticipates a significant increasein simplified procedure cases in these regions. For these reasons, the Superior Court has directed that the specialized skills of four Toronto case management masters be applied to the Rule 76 cases at specific sites in these regions. The project has been carefully scoped to address the case management needs at these sites, while ensuring that Toronto's case management needs are met.”

Four Masters are involved in the project, two assigned to Central East region and two to Central West. Each Master sits one week per month in their assigned region, ensuring a total coverage of two weeks per month in each region. Masters assigned to the pilot project preside over all rule 76 pre-trials in the designated sites in the Central East and Central West region, Newmarket in the case of the former, and Milton and Brampton in the case of the latter. Chief Justice Smith believes case management Masters are well suited for the role. She states:

“Given their expertise in mediation and ADR, the case management masters can have a significant impact on settling cases at the pre-trial stage and, thereby, facilitating effective resolution of cases on an efficient timeline. This should also reduce the overall pending civil caseload in Brampton, Milton and Newmarket - three of the busiest centres in the province. Given the masters' familiarity with the civil justice system and their proactive and comprehensive case management skills, they can effectively ready matters for trial - and preferably, summary trial- in cases where matters cannot be settled.”

Early Results and Future of the Pilot Project

Chief Justice Smith recognizes that the success of the pilot project will depend on the “buy-in” by the local bar. However she is confident and states that judges and case management Masters are fully committed to the initiative. She notes: “Part of the project's aim is to promote efficiency in civil litigation matters through a readily accessible, settlement-focused pre-trial process followed by a timely summary trial or regular trial proFebruary 2011 | Briefly Speaking • En Bref

cess.” It is anticipated that as the project progresses, cases that are summary trial ready will be placed on a discrete trial list.

Lawyer Kenneth Hill (Hill Hunter Losell Law) practices civil litigation in Newmarket and was present at the outset to be introduced to the Masters. He commented: “I haven’t had any direct experience as to how it’s working, but I support the idea in principle because of the lack of judicial resources.”

The pilot project has brought certain benefits, says Chief Justice Smith, for example in the scheduling of judicial resources in the participating regions. She notes: “The involvement of the specialized case management masters to hear all Rule 76 pretrials in these regions allows the judges to be scheduled elsewhere, helping to optimize efficiencies in the civil litigation stream.” The upshot is that parties have access to a speedier pretrial conference. Chief Justice Smith commented that: “Faster access to pre-trial conferences and more proactive, comprehensive and consistent case management of Rule 76 matters has started to facilitate early resolution and reduce the time needed to make matters trial-ready.” As the pilot project moves forward, while early responses have been positive, there are some challenges identified by Chief Justice Smith. The case Management masters assigned to Central East and Central West region have capacity to hear many more pre-trials. The success of the pilot project will require the support and buy-in from the local bar. Chief Justice Smith notes: “It is recognized that adoption of the Rule 76 process may require changes to the prevailing legal culture in the civil litigation bar.”

As for the future of the project, Chief Justice Smith notes that the project is in its early stages, but “consideration may be given to extending or expanding the program depending on the successful uptake of this Rule 76 case management master initiative, the needs of the particular judicial regions, and the response and participation of the local bar.”

The success of the program will be measured, in part, by the level of participation in the streamlined procedure. The pilot project will run until June 2012 to permit time for uptake and participation. Chief Justice Smith notes the project has been and continues to be monitored and evaluated on an ongoing basis. At the end of June 2012, the pilot project will be evaluated and decisions made based on the results. Audrey P. Ramsay is the chair of OBA Sections, past chair of the Civil Litigation Section, and a lawyer with Withrow & Associates, Staff Counsel of the Corporate Law Department of State Farm Mutual Automobile Insurance Company. Brian M. Bangay is a lawyer with Withrow & Associates, Staff Counsel of the Corporate Law Department of State Farm Mutual Automobile Insurance Company.

The opinions expressed in this paper are those of the authors and do not necessarily reflect the opinions of Withrow & Associates or the State Farm Companies.

Despite the challenges, Chief Justice Smith notes the response from the judiciary has been positive and very enthusiastic from the local bar.

Briefly Speaking • En Bref | February 2011

February 2011 | Briefly Speaking â&#x20AC;˘ En Bref

Generation Gap

Smartphone Etiquette A Light-hearted Look at a Burgeoning Concept J. Andrew Sprague

I recently encountered several events that have caused me to think about smartphone etiquette, both in my personal and professional life.

The first event occurred when I was hosting a formal dinner party for nine friends. One of my friends was at the opposite end of the table from me. Throughout dinner, her hands were underneath the table and she kept looking down. I repeatedly asked her to put her BlackBerry away and at one point asked

“Politely suggest that they focus on our time together”

her to leave the table if she needed to be with her device. She ignored me (we have that kind of relationship)! After dinner, one of my other guests asked me if she is a cardiac surgeon. She’s not.

The second event happened a couple of days later, when I saw a television advertisement for the new Microsoft Windows Phone 7. In the ad, various actors are so pre-occupied with their smartphones that they are oblivious to the world around them, and are often ignoring important people in their lives or are bumping into people in public. Mid-way through the ad, when one actor is using his smartphone in the washroom, another actor asks “Really?!” If you haven’t seen this wonderfully creative ad, it’s worth looking up on the Internet.

A few weeks later, the third event occurred. I was having dinner with a friend and her parents at a nice Italian restaurant. Again, I couldn’t see her hands and she kept looking down. I decided to call her with my smartphone. It turns out she has a special ring tone for me (you learn something new every day) so she muted the ring and looked up at me. This in turn led to a discussion at the table about smartphone etiquette.

According to the Merriam-Webster online dictionary, “etiquette” is defined as “the conduct or procedure required by good breeding or prescribed by authority to be observed in social or official life”. I think the etiquette rules for smartphones have yet to be clearly defined and one’s breeding is not necessarily indicative of one’s ability to ‘properly’ use a smartphone. For the record, I think most of my friends and colleagues were well bred by their parents; they just have “smartphone issues.” Also, I’m not entirely sure who the “authority” is supposed to be. Briefly Speaking • En Bref | February 2011

Here are my thoughts on smartphone etiquette.

1. In my view, open communication is one of the cornerstones of human interaction. When we communicate well with each other, we tend to interact well too. If someone’s smartphone use is interfering with your ability to effectively communicate with them, let them know. Sometimes, people need gentle reminders and, more often than not, they will appreciate the constructive feedback. When I’ve been in client meetings and I can see that they are being distracted by their smartphones (in non-emergency situations), I’ve politely suggested that they focus on our time together and they’ve responded well. Clients appreciate that it’s more cost-effective for them.

2. Smartphones have caused some clients, colleagues and friends to expect instantaneous, or near-instantaneous, replies to messages. For some smartphone users, this is okay with them and has become a part of their lives. Others prefer to choose when they will respond to a message. By having a discussion

“Set to vibrate instead of ring”

with people about how you prefer to use your smartphone, you can take proactive steps to better manage expectations. 3. I’m shocked at how many people do not password protect their smartphones. When I ask them if someone was able to access their email, calendar and contact list on a computer, would they be concerned? There is unanimous concern. When I suggest that if they lose their smartphone, they are potentially giving someone the same access, some of them are stunned. In my opinion, all smartphones should be password protected. 4. Smartphones can be set to vibrate instead of ring. This feature is often handy and appropriate for the environment one finds oneself in.

Smartphone etiquette is very much a burgeoning concept. I anticipate that within a few years, we will have clearer rules of engagement for smartphones, which should be of benefit to all of us. J. Andrew Sprague is a lawyer with Miller Thomson LLP. He is also a member of the Editorial Board of Briefly Speaking, and is the Public Affairs Liaison for the Information Technology and Electronic Commerce Section of the Ontario Bar Association.

snapshots

OBA Tips the Scales to Fight Hunger The OBAâ&#x20AC;&#x2122;s 2010 Holiday Food Drive in support of the Daily Bread Food Bank was a rousing success. Throughout the month of December, OBA members and staff generously collected nearly 1,000 lbs of non-perishable food items. The OBA wishes to extend a huge thank you to all those who contributed to help fight hunger in our community.

MAG Recognized for Justice on Target Strategy The OBA congratulates Attorney General Chris Bentley and his staff, who were honoured with the Gold 2010 IPAC/ Deloitte Public Sector Leadership Award for their Justice on Target Strategy.

Back row (L to R) Paul Macmillan, Deloitte Canada; James Cornish; Ken Anthony; Jim Andersen; Colleen Montgomery (partially obscured); Mark Langdon. Front row (L to R) Debra Whittall; The Hon. Chris Bentley, Attorney General; Stephen Rhodes, Associate Deputy Minister; Murray Segal, Deputy Attorney General; The Hon. Mr. Justice Bruce Durno; Kelly Donaher; Sue Miehm; Lynne Wagner; Robert Lecour; Shelly Jamieson.

February 2011 | Briefly Speaking â&#x20AC;˘ En Bref

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