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

October 2010 | Vol. 35 No. 5

EnBref

Brieflyspeaking The Environmental Issue


THE CONFERENCE CENTRE AT THE OBA

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

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

THE CONFERENCE CENTRE at the OBA 200-20 Toronto Street | Toronto | Ontario | M5C 2B8


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 24 28 35

Assessing the Big Online Gamble

The Plight of the ‘Eco-Refugee’

Legal Grenades

Heather McArthur Memorial Young Lawyers’ Award

Chantal Brochu Buset & Partners LLP The Honourable Doug Lewis Lewis Downey Tornosky Lassaline & Timpano Jeffrey S. Percival Ogilvy Renault LLP Maria Sagan Student Editor / Rédactrice étudiante J. Andrew Sprague Miller Thomson LLP Questions or Comments? / Questions ou commentaires? Editorial Team, Briefly Speaking/ Rédaction, En bref Robert Mitchell Director, Communications and Marketing/ Directeur, communications et marketing 416-869-1047 ext/poste 318 rmitchell@oba.org Catherine Brennan Communications and Marketing Specialist/ Spécialiste de communications et marketing 416-869-1047 ext/poste 357 cbrennan@oba.org Cheryl Crocker Communications and Marketing Specialist/ Spécialiste de communications et marketing 416-869-1047 ext/poste 309 ccrocker@oba.org Rob Gilmour Advertising Sales Vente d’annonces 416-869-1047 ext/poste 406 rgilmour@oba.org Filippo Conte Bilingual Communications Specialist/ Spécialiste bilingue de communications publiques 416-869-1047 ext/poste 346 Janet Weldon Graphic Design/Graphisme 416-869-1047 ext/poste 363

FEATURES The Price of Oil | Kristin Choo | 20 The Plight of the ‘Eco-Refugee’ | Peter Showler | 24 Survey of LGBTTQ Lawyers in Canada | Ed Montigny | 25 How Green is My Law Office? | Nancy E. Cooper | 26 Legal Grenades: OBA Endorses Ontario’s Proposed Anti-SLAPP Law | David Sterns | 28 “Chairity” Begins at Home | 29 Beyond The Accord | Laura Zizzo | 30 Career Symposium Addresses the ‘Greying Bar’ and Life Beyond Bay Street | 32 A Greener Future: Environmental Disclosure in Securities Regulation | Maria Sagan | 34 Heather McArthur Memorial Young Lawyers’ Award | 35 Snapshots | 36

COLUMNS Nota Bene | 2 Letters to the Editor | 3 President’s Message/ Message de la président | 4 Supreme Court of Canada Update | Eugene Meehan Q.C. | 10 Advocacy In Action – Dialogue and Consensu | 13 Queen’s Park Update – Assessing the Big Online Gamble | Peter Kormos | 14 Behind The Bench: Justice Eleanore Cronk, Justice Francine Van Melle, Justice of the Peace Rhonda Shousterman | 16 Spotlight On Sections – Franchise Law | Allan Dick | 18 Just For Laughs – “Tippling” the Scales of Justice? | Marcel Strigberger | 19

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

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

Briefly Speaking • En Bref | October 2010

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Nota BenE

Nota Bene 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 Mary Jane Hatton, Senior Judge of the Family Court Branch of the Superior Court of Justice of Ontario, is appointed Judge of the Superior Court of Justice of Ontario (Durham), to replace Mr. Justice A.J. Stong (Barrie), who elected to become a supernumerary judge as of July 31, 2010 and whose position was transferred to Durham. Madam Justice Hatton received a Bachelor of Laws (LL.B.) from the University of Western Ontario in 1973. She was admitted to the Ontario Bar in 1976.

Madam Justice Hatton was appointed Senior Judge of the Family Court Branch in 2008. She was appointed a judge of the Family Court Branch of the Superior Court of Justice of Ontario in 1999 and a Judge of the Ontario Court of Justice in 1990. Prior to her appointment, she was chair of the Case Management Operations Committee for the pilot project in the Toronto Family Court. She was counsel at the Children’s Aid Society of Metropolitan Toronto for five years and was in private practice for nine years specializing in family law. The Honourable Katherine B. Corrick, director of Policy and Tribunals at the Law Society of Upper Canada (LSUC), is appointed Judge of the Superior Court of Justice of Ontario in Toronto, to replace Mr. Justice V. Paisley, who elected to become a supernumerary judge as of May 6, 2010. Madam Justice Corrick received a Bachelor of Arts (B.A. Psychology) from the University of Toronto in 1976 and a Bachelor of Laws (LL.B.) from Osgoode Hall Law School in 1979. She was admitted to the Ontario Bar in 1981.

Madam Justice Corrick has been the director of Policy and Tribunals at the LSUC since 1996. She was a legal member of the Ontario Review Board in 1993 and alternate chair (19941999). She was also a faculty member of LSUC Bar Admission Course (1991-1996), sole practitioner in criminal law (19831990) and an Ontario Legal Aid Plan staff duty counsel (19811983). Her main area of practice was as general counsel to 2

the LSUC advising the Treasurer, CEO and benchers on legal matters affecting the Law Society, including corporate governance, director’s duties, administrative law and procedure. Madam Justice Corrick was a member of the Association in Defence of the Wrongly Convicted (2004-2009) and a member of the Criminal Lawyers’ Association (1983-1996). She is an author and co-author of several publications and frequent speaker on various topics, including “The Future of the Legal Profession” and “Access to Legal Services.”

The Honourable James A.S. Wilcox, a lawyer with Wallace, Klein Partners in Law, is appointed Judge of the Superior Court of Justice of Ontario in Haileybury, to replace Mr. Justice J.S. Poupore, who elected to become a supernumerary judge as of July 26, 2010 and whose position was transferred to Haileybury. Mr. Justice Wilcox received a Bachelor of Arts (B.A. Honours) in 1979 and a Bachelor of Laws (LL.B.) in 1982 from the University of Western Ontario. He was admitted to the Ontario Bar in 1984.

Mr. Justice Wilcox has been a lawyer with the firm Wallace, Klein Partners in Law LLP since 1998. He practised with McLachlan, Wilcox & Ducharme (1989-1998), and previously with David R. Service of Barrie (1987-1989), Powell, Cunningham, Kennedy and Grandy in Parry Sound (19851987) and with Wallace and Carr (North Bay) in 1984. His main area of practice was family law, but also specialized in criminal law, youth court, wills and estates, civil litigation, real estate and provincial prosecutions and mental health law. Mr. Justice Wilcox has been a legal member of the Ontario Review Board since 1998. He was a delegate for the County and District Law Presidents’ Association, vice-president of the Nipissing Law Association since 2006, member of Ontario Trial Lawyers’ Association since 1997, the Nipissing Legal Aid area committee since 1989, and the Canadian Bar Association since 1985. He is active in numerous charitable and community organizations. October 2010 | Briefly Speaking • En Bref


Nota BenE APPOINTMENTS Susheel Gupta, B.A., LL.B., has been appointed vice-chair of the Canadian Human Rights Tribunal (CHRT).

Mr. Gupta received his Bachelors of Arts at the University of Waterloo in 1993, his LL.B. from the University of Ottawa in 1998 and was called to the Ontario bar in February 2000. He has served in the public service as a prosecutor and computer crime advisor, special advisor at the Canadian Air Transport Security Authority and as counsel in the Crimes Against Humanity and War Crimes section at the Department of Justice. As a community member and public servant, Mr. Gupta has been the recipient of the Government of Canada Youth Award for Excellence, the Deputy Minister of Justice Humanitarian Award and most recently the Ontario Justice Education Network Chief Justice Lennox Award.

The CHRT was established in 1977 as an independent agency. Along with the Canadian Human Rights Commission, the CHRT administers the Canadian Human Rights Act according to procedures specified by law and without interference from the Government. Verlyn Francis has been appointed to the Ontario Arts Council. AWARDS

OBA Past-President Carole Brown was honoured by the Women’s Law Association of Ontario (WLAO) President’s Award. The Ottawa Chapter recognized Brown for her outstanding service within the profession and her leadership in advancing the position of women lawyers in Ontario. The award was presented on October 20, 2010 at Chateau Laurier in Ottawa.

Carole Brown joins past WLAO award recipients including Justice Alice Desjardins, of the Federal Court of Appeal and Barbara Hendrickson of League Assets Corp.

Letters to the Editor Dear Editor, I just wanted to drop you a quick line to comment on Marcel Strigberger’s bagel story (Just For Laughs, August 2010). I really enjoyed the article. I usually read legal magazines while eating a quick lunch in my office and his tidbit of humour was a great break in the day. Hopefully, we’ll enjoy more articles by Marcel in the future. Jasmine Daya

Dear Editor, As a new lawyer, I’ve been surprised by the number of industry publications that arrive each month. Since there is usually more than enough reading to get through during the work day, time for the “nonessential” mail category is sometimes short and the competition fierce. I enjoyed reading Briefly Speaking as a law student, and then as an articling student, and have observed the publication developing from a fairly dry “newsletter” into a more interesting magazine with a themed focus. The past few issues of Briefly Speaking have been catchy; the December 2009 issue focusing on New Liskeard in particular stands out as both interesting and entertaining. I like the direction Briefly Speaking is heading and will be sure that the current issue makes it to the top of my in-box. Kyle Magee

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Briefly Speaking • En Bref | October 2010

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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President’s Message Hail

2010-11: The Year OBA Members Look Up Lee Akazaki

“Put your head down and work. When you look up, it will be fifteen years later.” * These words of advice to a young lawyer in 1951 still capture the model partnership-ladder career or—as some call it—a life in the law. The number one challenge for lawyers in Ontario as we enter the second decade of the 21st Century is to preserve the essence of being a lawyer, despite pressure from the knowledge economy to reduce our ranks to the status of commodities. Some of our members are integrated into one of the most sophisticated financial markets in the world. Others provide essential legal services to those whose lives sit on the knife’s edge of society. Chances are your practice or employment is somewhere in between. Whatever a “life in the law” means to you, your membership in the OBA will help you stay ahead of the pack, allow you to share ideas with like-minded colleagues, and stand up for your profession on the public stage.

This will be a transformative year. We have emerged from the same economic conditions which have challenged lawyers all across Canada. Lawyers buried under work, both in private and in public sectors, may once again surface for air. Thanks to the leadership and dedication of my predecessors, most recently Carole Brown and Jamie Trimble, the expertise of our staff, and the generous efforts of our volunteers: we are strong, we are inclusive, and we are heard. Now is a unique opportunity for renewal, and together we will: •

• •

make the OBA a truly provincial association

build a legal education infrastructure for all lawyers

welcome and encourage lawyers into the work of the OBA, and thereby promote them as leaders in the bar.

No, we can’t see Russia from our back yard, either.

But compared to the City of Wasilla, the OBA has more than twice its population spread out over distances as wide as all Alaska. The OBA’s geography will not be an impediment to empowering lawyers in every region of Ontario to effect change, or to resist it, based on local realities. We start this work by planning an October Council meeting devoted en4

tirely to regional issues. We have to ensure membership dollars collected from all regions of Ontario are used to deliver relevant services, advocacy and networking opportunities to all regions of Ontario.

This initiative is founded on the same core enlightened self-interest behind all successful professional associations: connecting with someone outside your tent expands the tent. Furthering the interests of lawyers in neighbouring regions, as well as in those a region or two removed, will benefit the lawyers in one’s own region. I have asked our eight regional board members-at-large to be paired off with their counterparts from geographical extremes. The intention is to channel the new regional structure of the OBA Board of Directors into a working engine for regional initiatives. A provincial perspective will be crucial to positioning the OBA to advocate for lawyers in the mainstream of public discussion. The public must learn that lawyers do not only work in Toronto and for economic elites. Lawyers’ work is integral to the building of communities in which the people of Ontario will raise their children, build our places of work, and protect the vulnerable. Mandatory Professional Development

It is a core mandate of our association to preserve our profession’s culture of lifelong learning and its rich heritage. Legal education in Ontario will undergo a year like no other, with the advent of Compulsory Professional Development (CPD). The OBA was a leader in advocating the change, very soon upon us. Now it is time for us to deliver. The first part of the job has been to remodel the way we produce professional adult education. In 2010-11, the OBA’s practice sections will have more say in the type of programming their members will attend. But that is only the first step toward a more comprehensive review of program delivery.

Our new Chair of Professional Development, Martha MacKinnon, will be leading a working group, studying the future of the OBA’s CLE, including the wisdom and shape of October 2010 | Briefly Speaking • En Bref


President’s Message Hail a proposed joint venture with the Law Society. While the idea of merger of the province’s two main non-profit CLE providers has ignited some excitement among members, it cannot be contemplated without mechanisms wedding the opposing business models of each organization, the OBA’s being chiefly volunteer-based and the Law Society’s being staff-centered.

The working group will report its preliminary study of the options at the October meeting of OBA Council, to be further debated in meetings throughout the term. Despite the allure of mutual benefits, no such venture will succeed unless we all accept the distinct organizational cultures of the OBA and the Law Society. Members choose to join the OBA for all kinds of reasons. They are required to belong to the Law Society, and reasons for joining do not come into it. Mentorship and Governance

The words, You Can’t Say You Can’t Play aren’t just the title of a book for kindergarten teachers. Adults, too, thrive in a place where they can join in. The OBA is not a club. Nor is it a union shop. As a volunteer member-service organization, it cannot exist without members. It is that simple. We have instituted a number of key reforms this past year, which will start to bear fruit in the coming term. With the passage of the OBA Code of Conduct, Ontario has led the country in broadcasting a renewed spirit of openness and transparency in everything we do. The CBA has adopted it, almost verbatim, in its Principles of Conduct. The OBA has to be a welcoming place where the energy of new members can be harnessed to create the fearless and independent bar of the future. This cannot be accomplished without following practices and procedures written down and published for everyone to read.

In the law, those who can, do and teach. This year, our PastChair of Membership, Kathryn Gamble-Lerchner, has agreed to

serve as the OBA’s first chair of Mentorship. The OBA lobbied hard to get mentorship recognized as a credit-acquiring activity for the new CPD regime, both for mentors and for protegés. After a highly successful launch of the OBA’s mentorship program in all eight regions, we are ready to build mentorship into a core member-service area. Mentorship, if done properly, will do for the regions what Sections have done to deliver membernetworking opportunities in the Toronto region. As lawyers at all levels of experience pursue career paths beyond the “nuclear” law firm model of the last century, the OBA’s ability to foster mentors could be crucial to the future of our association and of the bar of Ontario itself. Our Carole – this bears repeating

Past-President Carole Brown has been recognized by the Women’s Law Association of Ontario (WLAO) Ottawa Chapter for her outstanding service within the profession and her leadership in advancing the position of women lawyers in Ontario. The WLAO President’s Award was presented to “Our Carole” on October 20, 2010 at Chateau Laurier in Ottawa. We have had a remarkable year at the OBA with Carole at the helm, but it is only one year within a lifetime of Carole’s dedication to the OBA and the CBA family. Finally, may I take this opportunity to thank and congratulate, not only to our elected members of the Board of Directors, Council, Sections executives and committees, but also to every candidate and every outgoing office-holder. Also all our speakers, program chairs and other volunteers. You make it happen. Lawyers across Ontario reap the rewards. *Finlayson, George D., John J. Robinette, Peerless Mentor: An Appreciation (Toronto: Dundurn Press, 2003), p. 118

OBA Professional Development | Section Programs - OBA Exclusive FEATURES • • • • •

Practice specific Timely Quick – breakfast, lunch or dinner Great speakers Current topics

Just a sample of some of the upcoming Section programs Welcome Reception for Articling Students – Public Sector Lawyers The Independence of the Expert - “Who Let the Dogs Out?” – Construction Law Karen Spector Award to Jennifer Stoddart Privacy Commissioner for Canada – Privacy Law

www.oba.org/pd

for a complete listing of programs

Briefly Speaking • En Bref | October 2010

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Message du président Je vous salue

2010-2011: L’année pendant laquelle les membres de l’ABO se tiennent la tête haute Lee Akazaki

“Abaissez la tête et travaillez. Lorsque vous la relèverez, quinze ans se seront écoulés.” * Ces conseils à un jeune avocat prodigués en 1951 illustrent toujours la carrière idéale d’« échelle de partenariat », ou, comme certains l’appellent, la vie dans le droit. Maintenant que nous entamons la deuxième décennie du XXIe siècle, le principal défi des avocats en Ontario est de préserver l’essence de la profession d’avocat, malgré les pressions de l’économie de la connaissance visant à nous réduire au statut de marchandises. Certains de nos membres sont intégrés à l’un des marchés financiers les plus sophistiqués au monde. D’autres fournissent des services juridiques essentiels à ceux qui vivent en marge de la société. Votre pratique ou votre travail se situe probablement quelque part entre ces deux extrêmes. Peu importe ce que la « vie dans le droit » signifie pour vous, votre appartenance à l’ABO vous aide à rester en tête du peloton, à partager des idées avec des collègues aux vues semblables, et à vous porter à la défense de votre profession sur la scène publique.

Cette année en sera une de transformation. Nous avons émergé de la même conjoncture économique à laquelle les avocats de partout au Canada ont fait face. Les avocats ensevelis sous le travail, qu’ils soient issus du secteur privé ou public, peuvent à nouveau remonter à la surface pour respirer. Grâce au leadership et au dévouement de mes prédécesseurs, dont les plus récents ont été Carole Brown et Jamie Trimble, à l’expertise de notre personnel, et aux généreux efforts de nos bénévoles, nous sommes forts, nous sommes englobants, et notre voix est entendue. Le temps est au renouvellement, et ensemble nous : • • •

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ferons de l’ABO une association véritablement provinciale établirons une infrastructure d’éducation juridique pour tous les avocats encouragerons les avocats à prendre part aux activités de l’ABO, et, ce faisant, nous leur permettrons de se poser en chef de file au sein du barreau

Non, nous ne pouvons pas non plus voir la Russie de notre arrière-cour Les membres de l’ABO représentent toutefois plus de deux fois la population de Wasilla et sont étalés sur des distances aussi importantes que celles de l’Alaska. Le territoire de compétence de l’ABO ne sera pas un obstacle à la capacité des avocats de toutes les régions de l’Ontario à adopter des changements, ou à s’opposer à ces derniers, en fonction des réalités locales. Nous amorçons ce travail par la planification d’une réunion du conseil, en octobre, entièrement consacrée aux questions régionales. Nous devons nous assurer que les fonds d’adhésion prélevés de toutes les régions ontariennes servent à la prestation de services et d’occasions de défense des intérêts et de réseautage pertinents, et ce, dans toutes les régions de l’Ontario. Cette initiative se fonde sur le même intérêt fondamental et éclairé qui anime toutes les associations professionnelles à succès : en établissant des relations avec ceux à l’extérieur de notre tente, on élargit cette dernière. En promouvant les intérêts des avocats dans d’autres régions, qu’elles soient limitrophes à la nôtre ou un peu plus éloignées, on aide les avocats de sa propre région. J’ai demandé à nos huit membres à titre personnel régionaux de se jumeler avec leurs homologues d’autres régions. L’objectif est de faire en sorte que la nouvelle structure régionale du conseil d’administration de l’ABO soit le moteur des initiatives régionales. Une perspective provinciale sera cruciale au positionnement de l’ABO quant à la défense des intérêts des avocats dans le cadre de débats publics. Le public doit savoir que les avocats ne travaillent pas seulement à Toronto et pour les élites économiques. Le travail des avocats fait partie intégrante du développement de communautés dans lesquelles les Ontariens élèvent leurs enfants, aménagent leur milieu de travail et protègent les personnes vulnérables. October 2010 | Briefly Speaking • En Bref


Message du président Je vous salue Perfectionnement professionnel obligatoire

Un des mandats de base de notre association consiste à préserver la culture d’éducation permanente et le riche héritage de notre profession. Avec l’avènement du perfectionnement professionnel obligatoire (PPO), l’éducation juridique en Ontario connaîtra une année hors de l’ordinaire. L’ABO a été un chef de file dans la promotion de ce changement, qui sera très bientôt adopté. Il est maintenant temps pour nous de livrer la marchandise. La première partie du travail a consisté à remodeler la façon dont nous élaborons l’éducation professionnelle des adultes. En 2010-2011, les sections de pratique de l’ABO auront une voix plus importante au sujet de la programmation visant leurs membres. Cela ne constitue toutefois que la première étape vers un examen plus approfondi de l’exécution des programmes. Notre nouvelle présidente du perfectionnement professionnel, Martha Mackinnon, sera à la tête d’un groupe de travail chargé d’étudier l’avenir de la formation juridique permanente de l’ABO, y compris le bien-fondé et la conception potentielle d’une fusion proposée avec le Barreau du Haut-Canada. Bien que l’idée d’une fusion des deux principaux prestataires sans but lucratif de formation juridique permanente de la province ait suscité une certaine émotion parmi les membres, cette fusion est irréalisable en l’absence de mécanismes d’harmonisation des modèles opérationnels opposés de chaque organisme, l’ABO se fondant principalement sur ses bénévoles, tandis que le Barreau compte surtout sur son personnel. Le groupe de travail fera état de son étude préliminaire des options disponibles lors de la réunion du conseil de l’ABO en octobre. Ces options seront débattues lors de réunions tout au long de mon mandat. Malgré l’attrait des avantages mutuels, aucune fusion ne réussira si nous n’acceptons pas, tous et toutes, les cultures organisationnelles distinctes de l’ABO et du Barreau du Haut-Canada. Les membres choisissent d’adhérer à l’ABO pour toutes sortes de raisons. Ils sont toutefois tenus d’appartenir à la Société du Barreau, et les raisons de s’y joindre n’entrent pas dans l’équation.

de l’ABO. L’ABO exercé de fortes pressions pour que le mentorat soit reconnu comme activité d’acquisition de crédits dans le cadre du nouveau régime de formation professionnelle continue, tant pour les mentors que pour les mentorés. Après le lancement très réussi du programme de mentorat de l’ABO dans les huit régions, nous sommes prêts à faire en sorte que le mentorat devienne un domaine de service aux membres essentiel. S’il est réalisé correctement, le mentorat fera pour les régions ce que les sections ont fait pour la région de Toronto, en permettant des occasions de réseautage. Puisque les avocats de tous les niveaux d’expérience poursuivent leur cheminement de carrière au-delà du modèle de cabinet « nucléaire » caractéristique du siècle dernier, la capacité de l’ABO à former des mentors pourrait s’avérer cruciale pour l’avenir de notre association et du barreau en l’Ontario. Notre Carole – Il convient de le répéter

La présidente sortante Carole Brown a été honorée par le chapitre d’Ottawa de la Women’s Law Association of Ontario (WLAO) pour son service exceptionnel au sein de la profession et son leadership dans la promotion de la position des avocates en Ontario. Le prix de la présidente de la WLAO a été remis à « notre Carole » le 20 octobre 2010 au Château Laurier d’Ottawa. Nous avons connu une année remarquable à l’ABO avec Carole à la barre, mais pour cette dernière, il ne s’agit que d’un an de toute une vie de dévouement envers la famille de l’ABO et de l’ABC. Pour terminer, permettez-moi de saisir cette occasion pour remercier et féliciter non seulement les membres élus du conseil d’administration, des sections et des comités, mais également chaque candidat et chaque titulaire de poste sortant, ainsi que l’ensemble de nos intervenants, responsables de programme et autres bénévoles. C’est grâce à vous si tout cela est possible. Les avocats de l’Ontario en récoltent les fruits. *Finlayson, George D., John J. Robinette, Peerless Mentor: An Appreciation (Toronto: Dundurn Press, 2003), p. 118

Mentorat et gouvernance

La phrase Il est interdit d’interdire de jouer ne constitue pas seulement une règle utile pour les éducateurs à la maternelle. Les adultes, aussi, s’épanouissent là où ils se sentent acceptés. L’ABO n’est pas un club. Elle n’est pas non plus un atelier syndical. En tant qu’organisme de services aux membres dont l’adhésion est volontaire, l’ABO ne peut exister sans ses membres. C’est aussi simple que cela. Nous avons institué un certain nombre de réformes essentielles cette année, et nous en récolterons les fruits au cours du mandat à venir. Avec l’adoption du Code de déontologie de l’ABO, l’Ontario a été le chef de file du pays dans la diffusion d’un nouvel esprit d’ouverture et de transparence, et ce, dans tout ce qu’elle entreprend. L’ABC l’a adopté, presque mot pour mot, dans ses principes de déontologie. L’ABO doit être un organisme accueillant, où l’énergie des nouveaux membres peut être mise à profit, afin d’assurer le courage et l’indépendance du barreau de l’avenir. Pour ce faire, il est nécessaire de suive les pratiques et les procédures rédigés et publiés au vu et au su de tous.

En droit, ceux qui le peuvent agissent et enseignent. Cette année, notre directrice sortante de l’adhésion, Kathryn GambleLerchner, a accepté d’être la première directrice du mentorat Briefly Speaking • En Bref | October 2010

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President’s Message farewell

Farewell and Thank You Carole J. Brown

As this is my last Briefly Speaking article as outgoing president of the OBA, I want to take this opportunity to thank all of our members for the privilege of serving as your president during the course of this past year. It has been an honour to represent you and this very important Association, and to assist in furthering the excellent work that the OBA undertakes on behalf of the membership, profession and administration of justice.

My tasks this year would have been impossible without the support of all of you, our dedicated membership, Officers, Board of Directors and members of Council, Committees and Sections, who have given so generously of your time, energy and commitment. I also want to acknowledge and thank our Executive Director, directors and staff, without whose professional guidance and hard work, we could not be the organization that we are.

This has been a richly rewarding, intellectually stimulating year, with significant issues and challenges facing the legal profession which, together, we have addressed. I brought to the presidential term a number of goals and objectives, many of which have been achieved, while others will be carried on to fruition in the coming year. These included access to justice; professionalism and civility; modernization and reform of our association to better reflect and serve our changing society and profession; and ensuring greater representation and participation from our membership such that we truly represent “the voice of the profession” in all its diversity, including firms large and small, urban and rural, in all regions across the province, and members representing all demographics and all of our diverse and multicultural population.

Together, we advocated for across-the-boards sustainable legal aid. To this end, the OBA served on the Alliance for Sustainable Legal Aid, whose work culminated in the Attorney General’s announcement of a substantial increase in legal aid funding. The OBA continues to be involved in giving detail to the transformation of legal aid in Ontario. 8

Our focus on equity and diversity resulted in a threeyear action plan to ensure that the interests and opportunities of our equity-seeking members are advanced and that our profession truly reflects the rich, multicultural nature of our province and nation.

To ensure greater regional diversity, we amended our bylaws to provide for a representative from each region on our Board of Directors. As a result, directors elected for 2010-2011 will constitute the first truly regionally representative board. We have made many submissions to government, tribunals and the LSUC this year on behalf of the profession, and have worked on initiatives to foster professionalism and civility. In order to realize larger visions, we have worked closely with other legal entities, including the CBA and sister branches across the country, county and provincial legal organizations, the Law Commission of Ontario, LSUC, the Judiciary and Attorney General.

I want to acknowledge and thank my partners at Borden Ladner Gervais LLP for their support in permitting me to serve this year. Their support demonstrates the long commitment that my firm accords to service to the profession. As one of my senior partners, David Scott, has said “Professionalism thrives in the soil of service”. It is through our active participation and service that we enrich our lives and ensure our legal profession remains strong, vibrant and respected. It is working together for the betterment of our Association, our profession, and our justice system that we understand the strengths and true value of the OBA.

We have much to be proud of in respect of the work we do. Thank you for all that you have done to further common goals in the best interests of the profession. Thank you for having given me the opportunity to be a part of it all. Together we have achieved much. Together, we have made a difference. October 2010 | Briefly Speaking • En Bref


Message de la présidente Au revoir

Adieu et merci Carole J. Brown

Comme il s’agit de mon dernier article d’EnBref à titre de présidente sortante de l’ABO, je tiens à saisir cette occasion de remercier tous nos membres pour le privilège d’avoir été votre présidente au cours de l’année qui vient de s’écouler. J’ai été honorée de vous représenter et de représenter cette association essentielle, ainsi que de contribuer à poursuivre l’excellent travail de l’ABO au nom des membres, de la profession et de l’administration de la justice. Il aurait été impossible d’accomplir mes tâches cette année sans votre soutien à tous, les membres dévoués, les administrateurs du conseil d’administration, et les membres du conseil, des comités et des sections, vous qui avez si généreusement donné votre temps et votre énergie, tout en démontrant votre engagement. Je tiens également à saluer et à remercier notre directeur exécutif, nos directeurs et notre personnel, dont l’orientation professionnelle et le travail acharné sont essentiels au fonctionnement de notre organisme.

Cette année, qui a été des plus enrichissantes et stimulantes sur plan intellectuel, nous avons abordé, ensemble, des défis et des questions de taille touchant la profession juridique. J’ai rattaché au mandat présidentiel un certain nombre de buts et d’objectifs, dont beaucoup ont été atteints, tandis que d’autres le seront dans l’année à venir. Ces buts et objectifs comprenaient l’accès à la justice, le professionnalisme et la civilité; la modernisation et la réforme de notre association afin de mieux refléter et servir notre société et notre profession, toutes deux en constante évolution; une participation et une représentation accrues de la part de nos membres, afin que nous incarnions réellement « la voix de la profession » dans toute sa diversité, y compris les cabinets de petite et grande taille, les milieux urbains et ruraux et toutes les régions de la province, en englobant des membres représentant toutes les catégories démographiques ainsi que la population, diversifiée et multiculturelle.

Ensemble, nous avons plaidé pour une aide juridique durable et globale. À cette fin, l’ABO a siégé au sein de l’Alliance pour l’aide juridique durable, dont les travaux ont mené à l’annonce par le procureur général d’une augmentation substantielle du financement de l’aide juridique. L’ABO continue de s’impliquer dans cette cause en fournissant des précisions quant à la transformation de l’aide juridique en Ontario. Briefly Speaking • En Bref | October 2010

Notre accent sur l’équité et la diversité a abouti à un plan d’action de trois ans visant à s’assurer que les possibilités et les intérêts de nos membres en quête d’équité sont promus et que notre profession reflète véritablement la composition richement multiculturelle de notre province et de notre nation. Pour assurer une plus grande diversité régionale, nous avons modifié nos règlements afin qu’un représentant de chaque région siège sur notre conseil d’administration. En conséquence, les directeurs élus pour la période 2010-2011 constitueront le premier conseil véritablement représentatif sur le plan régional.

Cette année, au nom de la profession, nous avons présenté de nombreux mémoires au gouvernement, aux tribunaux et au Barreau du Haut-Canada, et nous avons contribué à des initiatives visant à favoriser le professionnalisme et la civilité. Afin de réaliser des visions plus ambitieuses, nous avons travaillé en étroite collaboration avec d’autres organismes du secteur juridique, y compris l’ABC et nos associations sœurs à travers le pays, des organismes juridiques provinciaux et de comté, la Commission du droit de l’Ontario, le Barreau du Haut-Canada, la magistrature et le procureur général.

Je tiens à remercier mes associés de Borden Ladner Gervais LLP pour leur soutien, grâce auquel j’ai pu être présidente de l’ABO cette année. Leur appui témoigne de l’engagement à long terme de mon cabinet au service de la profession. Comme un de mes associés principaux, David Scott, l’a si bien dit : « Le professionnalisme croît dans le terreau du service ». C’est grâce à notre participation et à nos services proactifs que nous enrichissons nos vies et que nous nous assurons que notre profession d’avocat demeure solide, dynamique et respectée. C’est en travaillant ensemble à l’amélioration de notre association, de notre profession et de notre système de justice que nous comprenons les forces et la valeur réelle de l’ABO.

Nous avons de quoi être fiers du travail que nous accomplissons. Je vous remercie tous pour vos efforts visant à faire avancer nos objectifs communs, dans l’intérêt supérieur de la profession. De surcroît, je vous remercie de m’avoir fourni l’occasion de faire partie de cette grande aventure. Ensemble, nous avons accompli de grandes choses. Ensemble, nous avons fait la différence. 9


Supreme Court of Canada Update

Summaries Eugene Meehan, Q.C.

H

ere’s a summary of all appeals and all leaves to appeal (ones granted – so you know what areas of law the S.C.C. will soon be dealing with). For leaves I’ve specifically included both the date the S.C.C. granted leave and the date of the C.A. judgment below, in case you want to track and check out the C.A. judgment. This summary covers June 17, 2010 to August 20, 2010. If you’d like previous reports so you’re rightup-to-date, let me know, and I’ll e-mail them to you: emeehan@langmichener.ca.

APPEAL JUDGMENTS CHARTER: DAMAGES FOR BREACH

City of Vancouver, et al v. Ward, et al (B.C.C.A, January 18, 2010) (33089) July 23, 2010

The S.C.C. held: •

• •

10

an appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made damages under the Charter is a new endeavour, and an approach to when damages are appropriate and just should develop incrementally

actions for public law damages - including constitutional damages - lies against the state and not against individuals; actions against individuals should be pursued in accordance with existing causes of action

damages under s. 24(1) are a unique public law remedy, which may serve the objectives of: (1) compensating the claimant for loss and suffering caused by the breach; (2) vindicating the right by emphasizing its importance and the gravity of the breach; and (3) deterring state agents from committing future breaches even if the claimant establishes damages are functionally justified, the state may establish that other considerations render s. 24(1) damages inappropriate or unjust; a complete catalogue of countervailing considerations remains to be developed as the law in this area matures; however, two considerations are apparent: the existence of alternative remedies and concerns for good governance

the concern is to restore the claimant to the position she would have been in had the breach not been committed; as in a tort action, any claim for compensatory damages must be supported by evidence of the loss suffered; injuries, physical and psychological, may require medical treatment, with attendant costs; prolonged detention may result in loss of earnings non-pecuniary damages are harder to measure, yet they are not by that reason to be rejected; pain and suffering are compensable; absent exceptional circumstances, compensation is fixed at a fairly modest conventional

October 2010 | Briefly Speaking • En Bref


Supreme Court of Canada Update

rate, subject to variation for the degree of suffering in the particular case

in considering what is fair to the claimant and the state, the court may take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests.

CHARTER: REMEDIAL JURISDICTION OF ADMINISTRATIVE TRIBUNALS

R. v. Conway (Ont. C.A., April 29, 2008) (32662) June 11, 2010

If a tribunal has the power to decide questions of law, and if Charter jurisdiction has not been excluded by statute, the tribunal has the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate. A tribunal which has the jurisdiction to grant Charter remedies is a court of competent jurisdiction. CHARTER: SEARCH & SEIZURE

R. v. Cornell (Alta. C.A., April 28, 2009) (33186) July 30, 2010

In the context of a dial-a-dope coke trafficking operation, where the police had a valid search warrant and used a “hard entry” (they rammed open the front door without knocking or announcing their presence) the search and found items were legal. The search warrant must be in the possession of at least one member of the team of officers executing the warrant, though it is a better practice for someone among the first group of officers in the door to have a copy on them. CRIMINAL LAW: ACCESS TO INFORMATION; SOLICITORCLIENT PRIVILEGE Ontario (Public Safety and Security) v. Criminal Lawyers’ Association (Ont. C.A., May 25, 2007) (32172) June 17, 2010

The Criminal Lawyers’ Association made a request under the Ontario Freedom of Information and Protection of Privacy Act (FIPPA) for disclosure relating to an investigation of alleged police misconduct in the context of a homicide trial. At issue were a lengthy police report and two documents containing legal advice. The S.C.C. held: s. 23 of FIPPA is constitutional; the documents protected by s. 19 of FIPPA dealing with solicitor-client privilege are exempted from disclosure; the claim under the law enforcement provision, s. 14, is returned to the Privacy Commissioner for reconsideration. CRIMINAL LAW: INTERNET LURING

R. v. Levigne (Alta. C.A., November 3, 2009) (33450) July 15, 2010

By s. 172.1(3) of the Criminal Code, an accused is presumed by law, in the absence of evidence to the contrary, to have believed he was communicating with an underage sexual target and, by ss. (4), it is not a defence the accused believed the person was not underage, unless he took reasonable steps to ascertain the age of the person. CRIMINAL LAW: JURY CHARGES

R. v. Pickton (B.C.C.A., June 25, 2009) (33288) July 30, 2010

Adequacy of jury instructions must be assessed in the context of the evidence and trial as a whole. There is nothing wrong, particularly in complex or lengthy trials, that trial judges and counsel narrow issues for the jury by focussing on what is

Briefly Speaking • En Bref | October 2010

actually and realistically at issue in the case, provided that, at the end of the day, the jury is given the necessary instructions to arrive at a just and proper verdict. CRIMINAL LAW: (MANDATORY) PUBLICATION BANS

Toronto Star Newspapers Ltd. v. Canada (Alta. C.A., September 3, 2008) (32662) (Ont. C.A., January 26, 2009) (33085) June 10, 2010

Section 517 of the Criminal Code (whereby a justice of the peace is required, if an accused applies for one, to order a publication ban that applies to the evidence and information produced, to the representations made at a bail hearing and to any reasons given for the order) is constitutional. CRIMINAL LAW: SEARCH & SEIZURE

R. v. Nolet (Sask. C.A., January 21, 2009) (33032) June 25, 2010 The S.C.C. held: •

random checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into ‘an unfounded general inquisition or an unreasonable search’: R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 624. nevertheless, roadside stops sometimes develop in unpredictable ways; it is necessary for courts to proceed step-by-step through police interactions from the initial stop onwards to determine whether, as the situation develops, the police stay within their authority, having regard to the information lawfully obtained at each stage of their inquiry.

LABOUR LAW IN QUEBEC: JURISDICTION OF ARBITRATORS Syndicat de la fonction publique du Québec v. Quebec (Attorney General) (Que. C.A., June 2, 2008) (32771, 32772) July 29, 2010

Grievance arbitrators in Quebec have jurisdiction of determine whether the grievance and arbitration procedure set out in the collective agreement here is equivalent to the recourse provided for in s. 124 of the Act respecting labour standards. If the grievance and arbitration procedure is equivalent, the arbitrator must hear the grievance. If not, the grievance must be referred to the Commission des relations du travail. LABOUR LAW IN QUEBEC: JURISDICTION OF ARBITRATORS Syndicat des professeurs du Cégep de Ste-Foy v. Quebec (Attorney General) (Que. C.A., June 2, 2008) (32773) July 29, 2010 Similar summary as above.

LABOUR LAW IN QUEBEC: JURISDICTION OF ARBITRATORS Syndicat des professeurs et des professeures de l’Université du Québec à Trois-Rivières v. Université du Québec à Trois-Rivières (Que. C.A., June 2, 2008) (32776) July 29, 2010 Similar summary as above.

LEAVES TO APPEAL GRANTED ABORIGINAL LAW: FISHING RIGHTS What is the content and scope of an aboriginal claim for “Fisheries Resources” in the “Tribal Territories” of a First Nations group? 11


Supreme Court of Canada Update Lax Kw’alaams Indian Band, represented by Chief Councillor Garry Reece on his own behalf and on behalf of the members of the Lax Kw’alaams Indian Band, Others v. Attorney General of Canada and Her Majesty the Queen in Right of the Province of British Columbia (B.C.C.A., December 23, 2009) (33581) June 10, 2010 ADMINISTRATIVE LAW: DELAY

Does the Alberta Personal Information Protection Act permit the Alberta Teachers Association to disclose names of teachers and other information about them in an Association publication? Information and Privacy Commissioner v. Alberta Teachers’ Association (Alta. C.A., January 27, 2010) (33620) June 17, 2010 CHARTER: INTERJURISDICTIONAL IMMUNITY

In the context of the Vancouver Safe Injection Site, are exemptions by the Minister of Health pursuant to s. 56 of the Controlled Drugs and Substances Act constitutionally valid? Attorney General of Canada, et al v. PHS Community Services Society et al (B.C.C.A., January 15, 2010) (33556) June 24, 2010 CIVIL PROCEDURE: RESORT DIVING FATALITY IN CUBA; JURISDICTION

What is the proper jurisdiction where an Ontario resident is involved in a diving fatality in Cuba?

Club Resorts Ltd. v. Anna Charron et al (Ont. C.A., February 2, 2010) (33606) July 8, 2010 CIVIL PROCEDURE: RESORT INJURY IN CUBA; JURISDICTION

Club Resorts Ltd. v. Morgan Van Breda, et al. (Ont. C.A., February 2, 2010) (33692) July 8, 2010 CRIMINAL LAW: SENTENCING

When an individual is convicted of 16 counts of fraud and attempted fraud, what is the appropriate sentence, and what is the proper interpretation of s. 734(2) of the Criminal Code (requires a sentencing judge, in order to impose a discretionary fine, to satisfy themselves the offender is able to pay)? Her Majesty the Queen v. Topp (Ont. C.A., November 20, 2009) (33529) June 17, 2010 CRIMINAL LAW: EXCLUSION OF EVIDENCE

In the context of alleged homicide and admitted constitutional violations of the accused’s rights, what evidence is permitted, and what evidence is excluded? Côté v. Her Majesty the Queen (Que. C.A., February 18, 2010) (33645) July 8, 2010 WORKERS’ COMP: CHRONIC PAIN

Is the chronic pain policy of the B.C. Workers’ Compensation Board discriminatory? W.C.B. of B.C. v. Figliola et al (B.C.C.A., February 17, 2010) (33648) July 8, 2010 Eugene Meehan, Q.C. is the chair of the Supreme Court Practice Group with Lang Michener LLP.

What is the proper jurisdiction where an Ontario resident is seriously injured at a resort in Cuba?

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October 2010 | Briefly Speaking • En Bref


Advocacy In ACTIon

Dialogue and Consensus To ensure that the OBA speaks as a single voice, our submissions are developed through a process of dialogue and consensus.

The Public Affairs Chair works closely with the staff Director of Government and Stakeholder Relations in liaising with OBA Sections and Committees to identify current and emerging issues that need to be addressed. Government Relations (GR) maintains excellent working relationships with other GR staff at the Law Society of Upper Canada, the Law Commission of Ontario, and a variety of other legal organizations, as well as with political and public service staff in all levels of government. When an issue is identified, the relevant Section is asked to take the lead and a working group will be formed to begin drafting a submission. All Sections are advised and invited to participate in the process. The entire OBA membership is kept informed, and offered the opportunity to participate, through our bi-monthly OBA-at-a-Glance e-mail blasts. Opportunities to participate in outside stakeholder consultations are offered through Sections. This summer, OBA members attended the Ontario Government’s Infrastructure consultation and also followed up our submission at a public meeting with the AntiSLAPP (Strategic Lawsuits Against Public Participation) panel.

This summer has seen no slow down in the number of 2010. Currently, there are several working groups underway dealing with family law matters and administrative law issues. Since 26 the Briefly Speaking (Multi-tool) 12/18/08 2:51 PM June, OBA has completed the following submissions:

Bill 65, the Not-for-Profit Corporations Act, 2010

• Proposed Amendments to National Instrument 54-101, Companion Policy 54-101CP, Companion Policy 51-102CP, and National Policy 11-201 • OBA Submission on Recommendations to Modernize and Harmonize Ontario’s Personal Property Security Act and Repair and Storage Liens Act • OBA Submission to the Advisory Panel on Anti-SLAPP Legislation •

Law Office Search Guidelines – Letter to Law Society

Joint and Several Liability Consultation

• • •

Law Office Search Guidelines, OBA Revisions

Submission to the Law Commission of Ontario Civil Rules Committee: • •

Audio or Video Recording of a Defence Medical Maximum Rates for Fixing Costs (Rule 57)

• Proposed Environmental Review Tribunal Rules Respecting s. 142.1 of the Environmental Protection Act

To view these and other OBA submissions, please go to

Page 1 www.oba.org/submissions

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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.

Assessing the Big Online Gamble Peter Kormos, MPP Welland

What are they thinking? In early August, a tired McGuinty government, entering the final year of its second mandate and seemingly out of fresh policy ideas, decided Ontario needed to get into today’s virtual equivalent of the old wild west – the world of online gambling where questionable enterprises based in tropical, off-shore locations rule by picking the pockets of unsuspecting folks hoping to get rich quick. At one time, the current Premier spoke out against the inherent dangers of online gambling. No longer. That was then, this is now.

At the introductory press conference, the Finance Minister, whose responsibilities include overseeing the Ontario Lottery and Gaming Corporation, cited the increased global competition for gambling revenues and the need to keep Ontarians spending their precious gaming dollars – almost $500 annually per capita – here at home.

Sure, the province’s bricks-and-mortar casinos are hurting. Cross-border casinos in Michigan and New York are eating into Ontario casino profits as more and more Americans decide it’s far more convenient to stay home and gamble. So now Ontarians will be given the same opportunity: rather than trek to Rama or Niagara Falls for dinner, a show and a few spins at the Roulette table, they’ll be able to stay at home and try their luck.

Sadly, that’s exactly what many will do. They’ll plunk themselves down in front of a computer screen, pull out the credit card, cross their fingers and wait for the big one to strike.

According to the Responsible Gambling Council of Canada, 340,000 Ontarians already have a moderate to severe gambling problem. If I were in a betting mood (which I’m not), I’d say this number is certain to increase.

14

Especially when gamblers and wannabe-gamblers get subjected to a wall-to-wall marketing campaign promoting the virtues of online gaming. And you know that’s exactly what will happen.

Think of the last time the lottery corporation launched a new game of chance. You couldn’t watch a single episode of your favourite television program or tune in for the weather report on the radio or flip through the newspaper without encountering an ad for how better your life could become if you play Lotto This-and-That.

It will be a slick advertising barrage the likes of which we have not seen in a very long time. It will glamourize and legitimize gambling. And the province will prosper financially – or so the Finance Minister and the head of the lottery corporation claim. Facing a record deficit, the McGuinty government estimates online gambling will generate a $100-million profit each year. But you know what, that’s awfully small potatoes in a province that already spends more than $100-billion a year.

For a take of less than 0.1 per cent of its annual expenditures, the McGuinty government is prepared to sell its soul and enter a seedy virtual world. What are they thinking, indeed?

I’ve long been an opponent of casinos and I predict this online version won’t turn out well. It may become the worst public policy reversal since Bob Rae turned his back on public auto insurance. The irrational, wild-eyed pursuit of Lady Luck is sure to leave behind a trail of broken homes and destroyed families. The societal impact, not to mention the costs to mitigate this impact, will outweigh any benefit to the province – financial or otherwise. Consider ourselves not-so-lucky, Ontario.

Peter Kormos is the Ontario NDP’s Critic for Justice, Consumer Protection and the Ontario Lottery and Gaming Corporation

October 2010 | 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.

Le grand pari du jeu en ligne Peter Kormos Où ont-ils la tête? Au début du mois d’août, c’est un gouvernement McGuinty fatigué, commençant la dernière année de son second mandat et apparemment à court d’idées pour de nouvelles politiques, qui a décidé que l’Ontario devait se lancer dans l’équivalent moderne et virtuel de la conquête du Far West : le monde du jeu en ligne, où des entreprises douteuses basées dans les régions tropicales règnent et pigent dans les poches de personnes sans méfiance qui espèrent faire de l’argent rapidement.

Il fut un temps où le premier ministre actuel dénonçait les dangers inhérents au jeu en ligne. Plus maintenant. C’était le passé, le présent est différent. À la conférence de presse d’introduction, le ministre des Finances, dont les responsabilités comprennent la surveillance de la Société des loteries et des jeux de l’Ontario, a parlé de l’augmentation de la concurrence mondiale dans le domaine des revenus de loterie et de la nécessité de faire en sorte que les Ontariens dépensent l’argent précieux qu’ils parient – près de 500 $ par année par personne – ici-même. Oui, les vrais casinos de la province se portent mal. Les casinos de l’autre côté de la frontière, au Michigan et dans l’État de New York, grugent les profits des casinos ontariens, alors que de plus en plus d’Américains décident qu’il est bien plus facile de rester chez soi pour jouer. À présent, les Ontariens pourront faire de même. Au lieu de partir en expédition à Rama ou à Niagara pour souper, assister à un spectacle et jouer à la roulette, ils pourront demeurer à la maison pour tenter leur chance.

Tristement, c’est précisément ce que bon nombre de personnes choisiront de faire. Ils s’installeront devant leur écran d’ordinateur, sortiront leur carte de crédit, se croiseront les doigts et attendront de décrocher le gros lot. Selon le Conseil du jeu responsable du Canada, 340 000 Ontariens sont déjà aux prises avec un problème de jeu modéré ou grave. Si j’avais envie de faire un pari (mais ce n’est pas le cas), je dirais que ce nombre va certainement augmenter.

Surtout lorsqu’on bombarde les joueurs et joueurs en devenir de campagnes publicitaires intensives pour promouvoir les bienfaits du jeu en ligne. Et vous savez que c’est précisément ce qui se produira.

Briefly Speaking • En Bref | October 2010

Pensez à la dernière fois que la Société des loteries et des jeux a lancé un nouveau jeu de hasard. Il était impossible de regarder un seul épisode de sa série télévisée préférée, d’écouter le bulletin météo à la radio ou de feuilleter le journal sans tomber sur une publicité qui vous disait à quel point votre vie serait meilleure si vous jouiez à la loterie je-ne-sais-trop. Ce sera un joli battage publicitaire comme on n’en a pas vu depuis très longtemps. On donnera au jeu légitimité et attrait. Et la province s’enrichira (c’est du moins ce que le ministre des Finances et le président de la Société des loteries et des jeux affirment). Confronté à un déficit record, le gouvernement McGuinty estime que le jeu en ligne produira des profits de 100 M$ chaque année. Mais vous savez quoi? Ce ne sont vraiment que des miettes dans une province qui dépense déjà plus de 100 G$ par année. Pour moins de 0,1 % de ses dépenses annuelles en capital, le gouvernement McGuinty est prêt à vendre son âme et à faire son entrée dans un monde virtuel malfamé. Alors oui, où ont-ils la tête?

Je suis un opposant de longue date aux casinos, et je prédis que l’aventure de cette version en ligne ne se terminera pas bien. Il pourrait bien s’agir du pire renversement de politique depuis que Bob Rae a tourné le dos au régime public d’assurance automobile.

La poursuite irrationnelle et effrénée de Dame Chance laissera assurément dans son sillage des foyers détruits et des familles éclatées. Les effets sur la société, sans parler des coûts pour les atténuer, seront bien plus importants que les avantages pour la province, que ce soit sur le plan financier ou autre. Notre province ne doit donc pas se considérer si chanceuse.

Peter Kormos est critique du NPD de l’Ontario en matière de justice, de protection du consommateur et de la Société des loteries et des jeux de l’Ontario

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Behind the bench

Behind the bench Introducing you to Ontario’s Judiciary Justice Eleanore A. Cronk Shaping the Law Susannah B. Roth Before her appointment to the Court of Appeal in 2001, Justice Eleanore Cronk’s varied civil litigation practice included environmental, commercial, insurance and health law, enabling her to bring a sharp mind, intellectual rigour and over 30 years experience in the practical realities of civil litigation to the bench. “Different judges bring different strengths and weaknesses”, she says. A variety, she finds, is a great strength of the Court.

A senior litigation partner at Lax O’Sullivan Cronk prior to her appointment to the Court of Appeal, with an LL.B. from Windsor (1975), Justice Cronk was called to the bar in 1977, and appeared before a variety of courts and tribunals, as well as acting as counsel on several government commissions and inquiries. Not content to confine her professional life to the practice of law, she was active in The Advocates' Society, of which she is a past president (1992-1993), and the American College of Trial Lawyers. She continues as a judicial member in both organizations. Also a Bencher of the Law Society of Upper Canada (1995-2001), she chaired the Professional Development and Competence Committee (1999-2001) and the Discipline Committee (1997-1999). She feels that participation in these organizations has afforded her some of the most rewarding experiences of her professional life, and she does miss her active involvement with them. Justice Cronk shared her interest in civil justice reform by chairing the Canadian Bar Association task force on civil justice reform in the mid-1990s along with honorary chair Chief Justice Dickson. The task force recommendations led to the creation of the Canadian Forum for Civil Justice, an organization that provides civil justice research and statistics to government; invaluable in improving access to justice across Canada. She believes that the implementation of civil justice reports such as Justice Osborne’s, arising from the mid-1990s drive for civil justice reform, have greatly contributed to the improvement of our civil justice system.

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Proof that Justice Cronk has a life outside the law is found in the fact that she spoke to me from her cottage while her

two grandchildren ran around the front lawn. She spends as much time as possible at her cottage, doing her summer writing and spending time with her husband, two children (of whom she is evidently proud) and grandchildren. The greatest challenge of being a justice on the Court of Appeal, she finds, is the volume of material to be reviewed (she thought they were playing a joke her first week) and the short timelines (the Court prides itself on quick turnaround) for doing so. However, Justice Cronk enjoys the challenge, finding the responsibility for providing individual justice while shaping the law for all those who are not before the court to be intensely satisfying. “And the panels of three keep the perspectives in each case balanced”, she notes with a touch of humour. Susannah B. Roth, O’Sullivan Estate Lawyers

Justice Francine Van Melle Life’s a Trifecta Louise Harris Lately her life has been unfolding in increments of three. Last fall, Superior Court Regional Senior Justice Francine Van Melle was hit by a car, breaking her leg in three places. Following her surgery to repair the damage and insert a steel rod in her leg, she spent three months at home in a hospital bed, kept company by three cats. When we spoke to her, she was back at work, having physiotherapy three days per week and now walking with a cane which she says she will need for another three months. Van Melle, who practised family law in Oakville; latterly with (now) Justice Richard LeDressay as LeDressay, Van Melle and as a sole practioner for four years, decided at age 10 that she wanted to be a lawyer. After high school in Etobicoke she attended McGill, both for her undergrad degree and law

October 2010 | Briefly Speaking • En Bref


behind the bench school. She articled in Mississauga with Garth Burrow, a sole practitioner, and was called to the bar in 1982.

She was certified as a specialist in family law in 1992 and was active in the Halton County Law Association; ultimately serving as its president. She has been a speaker at the OBA’s Annual Institute, a bar admission instructor and a member of the Board of the Advocates’ Society. In 2000, she was appointed to the Superior Court in Central West and appointed as RSJ in 2009. One of the most interesting aspects of serving on the bench she finds is criminal jury trials. “The dynamics of a jury are very interesting. My background was in family law and so I had to learn about different issues with criminal law,” says Van Melle. “It is considerably more black and white. And it’s always interesting to watch how the jury reacts to evidence. It’s obvious to me that their verdicts are very well considered.” For Van Melle, one of the key aspects of choosing law was the feeling that she would be helping people individually. However, she says, she finds as a judge, her decisions have the potential to help many people. “In my own small way, I feel like I’m making a difference.”

Married for 28 years to Harold Hopf and the mother of Laura (24 years) and Alex (22 years), Van Melle had been known, prior to her accident, to pick up a golf club or take to the slopes. Van Melle is actively pursuing French lessons. “I’d like to be bilingual,” she says “and my goal right now with the lessons is to become fluent enough to conduct a trial in French.” She is pleased that Brampton and Milton in Central West were chosen as pilot sites for the Attorney General’s family law initiatives announced in December 2009, which will, she believes, tremendously augment service to the public. Dispute Resolution Officers and a mandatory information program are intended to reduce the stress on families and expedite the process so it’s “judge ready”.

Van Melle , while back at work, is eager to be “100%” again and fully back in the game, enjoying the collegiality of her colleagues and the many challenges of the caseload in Central West.

Justice of the Peace Rhonda S. Shousterman Gateway to Justice Louise Harris

Justice of the Peace Rhonda Shousterman came to the practice of law in a roundabout way, like many of her year. Originally from Montreal, she was a serious student of dance from grade school through CEGEP. When it came time for university, her love of the written word drew her to McGill Briefly Speaking • En Bref | October 2010

to study English literature, leading to a First Class Honours degree.

“I thought seriously about pursuing a career as an English professor,” says Shousterman. “With the scarcity of jobs in the field my thesis supervisor suggested that I apply to law school, practise for five years and then apply to teach at the university level.” Graduating from Osgoode Hall and called to the Bar in 1988, Shousterman articled at Fefergrad & Associates in Toronto, in a general practice with significant construction lien matters and matrimonial files. Following her articles she worked as counsel at the Catholic Children’s Aid Society.

“Child protection is a very challenging and emotionally difficult type of law to practise,” recalls Shousterman. “After the CCAS, I continued to practise in the family law area, but also maintained a keen interest in civil litigation. Over the years my practice just expanded into more of a family law practice.”

Shousterman never got the teaching bug completely out of her system and was an instructor in the Bar Admission course from 1992 – 2005 and also taught civil litigation for the Institute of Law Clerks at Humber College for 13 years. In addition she was a panel lawyer for the Office of the Public Guardian and Trustee from 2000 until her appointment as a Justice of the Peace in 2007. “The different twists and turns my career has taken kept everything interesting and challenging,” says Shousterman. “Being a justice of the peace in Central East brought me into a very different world. Having worked in different levels of court I have seen the impact decisions have on litigants and realize the impact of a case continues long after the case is concluded. A justice of the peace has to hear the issues from the perspective of all sides and then, recognizing the importance of the case to the parties themselves, decide according to law, common sense and the need to resolve disputes.”

Shousterman, a long time member of the Ontario Bar Association, sat on Council for several terms and maintains her membership in the Criminal Justice Section. She “appreciates the need for the profession to speak out on law reform as a united voice, both for the profession and ultimately in the best interests of the clients who are being served.” A future goal is to participate in the fly-in courts in the far north.

An avid reader, Shousterman and her husband James Morton also carve out time to travel. Rome is a perennial favourite because you can “touch the history”, but almost anywhere in Europe will get the nod. Retirement, a long, long way into the future may see her travelling in China to see the giant pandas, but for now Shousterman enjoys the variety and challenges of the Justice of the Peace bench - knowing that she and her colleagues are the gateway to Ontario’s justice system.

www.ontariocourts.on.ca

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spotlight on sections

Franchise Law Allan Dick

With the introduction into Ontario in 2000 of the Arthur Wishart Act (Franchise Disclosure), 2000 (AWA), a new era began for the provision of legal services to franchisors, franchisees and prospective franchisees. The Franchise Law Section of the Ontario Bar Association was established this year to continue to enhance the work of its predecessor, the Joint Subcommittee on Franchising (Civil Litigation and Business Law), in recognition that every lawyer in the province whose practice includes any aspect of franchise law should have a dedicated forum for the study and discussion of franchising and franchise law. There are more than 1,000 franchise systems operating in Canada, spanning a broad spectrum of commercial activity through 78,000 franchised units. Over 40% of the country’s gross retail sales are estimated to take place at franchised businesses, equivalent to 10% of Canada’s Gross Domestic Product. Many industry segments are similarly affected by franchising. The issues involved in advising franchisors, franchisees, prospective franchisees and clients who interact with franchise systems are myriad and complex.

The practice of franchise law integrates the practices in such diverse areas as competition law, intellectual property, secured transactions, leasing, insolvency and international/ cross-border law. A substantial body of case law, including in the class action context, has developed since the passing of the AWA. The case law reflects the complexity of the issues and challenges and potential exposure to professional liability facing Ontario lawyers in the provision of legal advice to clients operating within the franchise industry.

In November, 2010, the Franchise Law Section will hold the 10th Annual Franchise Law Conference in Toronto. This fullday program will once again provide attendees with the latest word on the issues facing Ontario’s lawyers. Its programming has consistently qualified to be given status by LawPro as CLE permitting premium reductions.

Speakers at the annual conference include members of the franchise law bar who practise locally, provincially, nationally and internationally, judges, ADR specialists, in-house counsel and industry experts. 18

Membership in the Franchise Law Section will provide you with access to the Section newsletter Focus on Franchising,

first published in 2009, expanding on the Section’s work in developing the “Franchising 101 Q & A” section of the OBA’s website. The Section hosts two dinner meetings annually to supplement the continuing legal education provided by the annual conference and newsletter. The February dinner focuses on current litigation topics while the May dinner updates members on particular issues of importance to commercial lawyers. The Franchise Law Section also hosts an active listserve where messages are posted and questions asked of lawyers regarding franchise law matters. It is also used as a vehicle for the timely release of recent cases, program information and other matters of interest.

The Franchise Law Section, as was its predecessor subcommittee, is actively engaged in the preparation of OBA submissions to government to address potential amendments to the AWA and its Regulation governing disclosure requirements in the sale of franchises to address the many inconsistent, uncertain and often impractical interpretations of the legislation. Your membership in the Section will ensure you are kept informed of these important efforts.

The complexity of franchise law was recognized by the Commercial List of the Superior Court of Justice when it added franchise law cases as a distinct type of case meriting inclusion in that court’s work and case management activities. This addition was brought about by submissions of the previous Subcommittee. The recent recognition by the Ontario Court of Appeal that system wide franchise disputes are “exactly the kind of case for a class proceeding” further emphasizes the importance to Ontario’s lawyers of understanding the significance of the issues which may well face their clients operating in the industry. Regardless of the degree to which you provide counsel to business segments affected by the franchise industry or actively consider yourself to be a franchise law practitioner, membership in the Franchise Law Section will provide you with a timely, comprehensive and invaluable resource for your practice. Allan Dick is chair of the OBA Franchise Law Section. His practice, with Sotos LLP in Toronto, focuses on all aspects of franchise law.

October 2010 | Briefly Speaking • En Bref


JUST for laughs

“Tippling” the Scales of Justice? Marcel Strigberger I had a case recently where a client pled guilty to impaired driving. She operated a car after having consumed a glass of wine too many. Maybe two glasses. OK, so her blood alcohol level was about three times the legal limit. Unfortunately, she had a similar previous conviction, drawing a fine. This time the judge remanded the case for sentencing, dropping a subtle hint that jail was a possibility, saying, “When you leave here next time you will not be passing GO and collecting $200.”

My client was a young woman originating from the Maritimes. The judge was a visiting judge. I recalled the words of my student days’ mentor, Henry: “It’s not how well you know the law; it’s how well you know your judges that counts most”. I asked around and determined that His Honour was a heavy hitter who especially abhorred alcohol offences. I also discovered that he was a very proud Ottawa native.

The crown incidentally was out for blood. He was looking for something like a life sentence cum driving ban. He would have been more favourably disposed to Lizzie Borden. At least she wasn’t drinking while she was whirling that hatchet, doing a piñata on her parents’ heads. The big day arrived and with trepidation of the kind I had not felt in years. I started my submissions: “Your Honour. My client has committed a dastardly crime.”

His Honour interrupted, looking over his moon shaped spectacles, “Yes, and she will be punished accordingly. Continue counsel.” I resumed, “My client originates from Digby, Nova Scotia. Her family still remembers that great explosion in the Halifax harbour in 1917, just a year after the Parliament buildings burnt down.”

“And that was quite the disaster wasn’t it counsel. The House of Commons up in smoke”, His Honour commented.

“My very point your Honour, my very point. This woman’s life has been filled with many disasters. She wanted always to be an artist. But in Digby opportunity was scarce. There were not many world-class museums, like the Louvre or the National Gallery of Canada in Ottawa. In fact the highlight of her teenage years was making that high school trip to Ottawa.” “She liked Ottawa, did she?” His Honour queried.

“She talked of nothing else. Every spring she would purchase tulips to remind her of that lovely experience.”

The crown attorney interrupted, “Well, let her set up her bouquet in jail this spring Your Honour.” “Mr. Crown, where is your sensitivity? Go on Mr. Strigberger. Why did she drink and drive?”

“I was getting to that your Honour. You see, she had a number of paintings on display at an exhibition at a small museum in Toronto, on Parliament Street.” “There is a Parliament Street in Toronto?”

Briefly Speaking • En Bref | October 2010

“Yes sir. There is even a market place, called Kensington. It’s something like Byward Market but they don’t sell beaver tails. No pastry in the world holds up a candle to a Byward beaver tail.”

“It certainly doesn’t counsel. Beaver tails with powdered sugar. Heavenly. Go on counsel, I’m listening.”

The Crown busted in again: “I say we send her tail to jail Your Honour.” “Counsel, do not irk me. I’m trying to follow Mr. Strigberger’ most interesting submissions. Go on please.”

“Thank you sir. You see, the public loved her paintings, especially her depiction of the Gatineau Hills country-side. It won a blue ribbon.” “There is scenery and then there are the Gatineau Hills”, commented His Honour. “Exactly Your Honour, exactly,” I conceded. “And after the awards presentations the museum hosted a reception. A couple of toasts. My client realized she had drank a glass too many only after she drove for a few minutes. She noticed she had difficulty reading the time from the Old City Hall clock tower. “ “Old City Hall clock tower?”

“Yes Sir, that cheap imitation of the Peace Tower.”

“Oh yes, of course. Pure fake. Go on sir”, His Honour said encouragingly. “No it’s not, Your Honour. It was built before the Peace Tower. The Peace Tower imitated the Old City Hall,” the Crown interrupted.

Triple bogey. His Honour took off his spectacles and eye-balled my friend. “One more display of this xenophobic attitude Mr. Crown and you’ll find yourself up the Rideau Canal without a paddle.” I continued, “At that time she immediately pulled her car over. But alas she got arrested. I ask Your Honour not impose a custodial sentence. Thank you sir.” “Mr. Crown have YOU anything else to say?” “Well, sir, I don’t think...”

“Thank you sir. The offence is grave. But judgment must be tempered with common sense and leniency where warranted. The accused is a poor young artist who came from a rather deprived area. Her heart was always in the right place. Just observe the subject matter of her paintings. She did not waste her time doing lighthouses. We cannot allow a moment of indiscretion to ruin her life. I order her to pay a fine of $100. She shall have reasonable time to pay. Ten years. After all she is only a poor artist, not the Royal Mint.” There is nothing like pleading a case before a judge with an open mind. Marcel Strigberger is a humourist trapped inside the body of a civil litigation lawyer – see www.legalhumour.com

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The Price of Oil By Kristin Choo

T

he legal repercussions from the BP oil spill in the Gulf of Mexico are spreading quickly. But like so many other aspec ts of the catastrophe, it is hard to predic t where the legal battles will lead—and impossible to say when, or how, they will end. By the end of June, with the closure of vast stretches of federal fishing waters, and with tourism plummeting along the U.S. Gulf Coast, emergency claim centers established by BP already had been flooded with some 87,000 requests for compensation to keep mortgages paid, businesses afloat and families fed. And those may be just the leading edge of the claims that will come in as the well blowout 5,000 feet below the surface of the Gulf continues to spew oil with sickening regularity despite all efforts so far to stop it. When this story went to press in early July, there had been no successful attempts to limit the flow of oil. The importance of getting money in a timely fashion to people hurt by the spill is widely acknowledged. “For the small-business owners, for the fishermen, for the shrimpers, this is not just a matter of dollars and cents,” said President Barack Obama in a statement issued in mid-June during talks with BP officials. “A lot of these folks don’t have a cushion.”

No one wants to see a replay of the two-decades-long litigation that followed the 1989 Exxon Valdez oil spill in Alaska’s Prince William Sound, which was notorious for being the worst oil spill in U.S. waters—until BP’s Deepwater Horizon rig exploded April 20 some 40 miles off the Louisiana coast. That’s why the agreement hashed out in June between Obama and BP Chairman Carl-Henric Svanberg to create a $20 billion compensation fund for Gulf spill victims was hailed as a way to bypass potential legal logjams and distribute funds quickly and efficiently. BP agreed to add additional money to the fund if compensation costs exceed $20 billion. 20

The fund also can be used to pay other judgments and settlements, cover state and local cleanup costs, and help salvage threatened natural resources.

The Gulf Coast Oil Spill Claims Facility will be administered by attorney Kenneth R. Feinberg of Washington, D.C., founder and managing partner of the mediation firm Feinberg Rozen. Feinberg has been involved in a number of notable claim settlements in recent years, including being appointed as administrator of the $7 billion Sept. 11 Victim Compensation Fund. Feinberg is empowered to decide what standards to apply in disbursing money from the fund to claimants. “I may use applicable state law or maritime law or other government law in order to leave open the possibility of applying a third standard,” he said during an interview with the ABA Journal on June 26. Those comments appeared to back away from earlier statements suggesting that he might rely primarily on the law of each claimant’s home state to guide his compensation decisions.

‘A CLEAN SLATE’

The BP compensation fund is causing growing debate among lawyers and other experts in maritime law and compensation systems. It may be too early to tell how efficient the fund will really be or whether it will be an improvement on laws passed in the wake of the Alaska spill to address compensation issues. “We’re early in the game with the new fund,” says Zygmunt J.B. Plater, a professor at Boston College Law School in Newton who chaired the Alaska Oil Spill Commission’s legal task force dur-

October 2010 | Briefly Speaking • En Bref


ing a two-year period after the Valdez spill. “My point is that it’s a game changer. This whole blowout is a game changer, and the agreement that Obama made with Svanberg is unprecedented.” In terms of how claims will be handled, Plater says, “we’re writing on a clean slate.”

But not everyone is applauding the fund. “My belief is that it has been set up to save BP money by forcing claimants to make an upfront election of lump-sum payment in return for a full and final release of all claims against BP,” says Rhon E. Jones, who manages the toxic torts section at Beasley, Allen, Crow, Methvin, Portis

The Exxon spill coated 1,300 miles of the Alaskan coastline with oil; it killed hundreds of thousands of seabirds and animals, as well as billions of fish eggs. Despite a $2.1 billion cleanup effort by Exxon, some of this oil still lingers. “If you pick up a rock on many of Alaska’s rocky beaches, you can still see oil percolating up,” Plater says. In the wake of the spill, lawsuits were filed in both state and federal courts. Eventually, the bulk of the claims were consolidated and tried in federal court under a maritime negligence tort.

In 1994, a jury awarded the plaintiffs $287 million in compensation and $5 billion in punitive damages. Exxon appealed, and the case dragged on until two years ago. On June 25, 2008, the U.S. Supreme Court issued a controversial ruling in Exxon Shipping Co. v. Baker that, in maritime torts, punitive damages should be awarded on a dollar-for-dollar basis with compensatory damages. Since Exxon had paid out a total of $507 million in compensation in various settlements, under Baker its punitive damages were limited to the same amount. Thousands of plaintiffs didn’t settle their last issues with Exxon until April—the same month the BP rig blew in the Gulf of Mexico.

THE LEGAL CAP

In 1990, Congress passed the Oil Pollution Act, which brought some fundamental changes to the law governing oil spills. One of the act’s key provisions requires parties responsible for oil spills to cover all cleanup costs. The act also permits economic damages resulting from a spill to be recovered from a responsible party. At the same time, however, the act caps a responsible party’s liability for economic and other damages at $75 million, and does not provide for recovery of punitive damages.

The $75 million cap does not apply if the spill was caused by “gross negligence or willful misconduct,” or if the responsible party or any of its agents violated a federal safety regulation. The act also established the Oil Spill Liability Trust Fund, funded primarily through a five-cent-per-barrel tax on the oil industry, to help cover removal costs and damages when a responsible party is unable or unwilling to make appropriate payments. & Miles in Montgomery, Ala. But a final assessment of whether claimants should seek settlements under the fund or litigate their cases should wait until all the fund’s rules and procedures are in place, says Jones, who co-chairs the Gulf Oil Spill Litigation Group for the American Association for Justice.

Technically, the well blowout in the Gulf of Mexico is different from what occurred 21 years ago when the Exxon Valdez hit the Bligh Reef off the Alaska coast. That was a classic oil spill in which the broken ship released some 11 million gallons of oil into Alaskan waters.

That distinction aside, the end result is the same: Oil choking a body of water that was vibrant with wildlife and the source of the livelihoods of thousands of people.

But there is one other difference: The BP spill is so gigantic that according to some reliable estimates it has been leaking the equivalent of one Exxon Valdez oil spill into the Gulf of Mexico every four days for more than two months, and it will continue doing so unless relief pipelines being drilled by BP can siphon off the oil flowing out of the broken underwater well. The company hopes that work will be completed later in the summer. Briefly Speaking • En Bref | October 2010

The Oil Pollution Act is “just one big screw job for claimants,” says Brian B. O’Neill, a partner at Faegre & Benson in Minneapolis who represented 32,000 fishermen and Alaska natives in litigation against Exxon.

And although OPA preserves state law remedies for oil spills, both the 1st U.S. Circuit Court of Appeals at Boston and the 9th Circuit at San Francisco have ruled that the act pre-empts the maritime negligence cause of action under which Exxon was tried.

“Under a maritime cause of action, if you prove negligence you’re entitled to your damages, including punitive damages, with no cap,” says O’Neill. “A plaintiff was better off in 1989 than he is today.”

A SPILL TOO FAR

But others maintain that OPA is a significant improvement over the remedies that were available under maritime law when the Valdez ran aground in 1989.

If not for the Oil Pollution Act, the BP oil spill would be governed by traditional maritime law because it occurred in open waters, says Martin J. Davies, director of the Tulane Maritime Law Center at Tulane University Law School in New Orleans. That means it [continued on page 22]

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also would fall under the 1927 ruling in Robins Dry Dock & Repair Co. v. Flint, in which the Supreme Court held that a plaintiff alleging a maritime tort must have suffered a direct physical injury to be eligible for compensation. The opinion written by Justice Oliver Wendell Holmes has been widely interpreted as a bar to compensation for purely economic losses under maritime law. (There is an exception for commercial fishermen.)A key question is whether OPA’s legal regime is adequate to deal with the scope of the BP oil spill. Some experts have their doubts. “We really don’t have an analogous situation” to the Gulf spill, says Mark Davis, director of the Tulane Institute on Water Resources Law and Policy and a senior research fellow at the law school. “Damages are three-dimensional and extend for thousands of square miles, and they continue to happen every day. This is not what OPA envisioned.”

Davies expresses similar concerns, even though BP has said it will pay all “legitimate” claims over and above the $75 million cap set by the Oil Pollution Act.

OPA may not provide much guidance if it is used as a precedent for determining legitimate claims, largely because it is silent on the question of whether individuals and businesses who suffer indirect losses from the spill would be able to claim compensation. Such claimants might include an oyster restaurant that must now import oysters, or a travel agent who has seen her bookings sink as oil befouls the beaches. OPA “doesn’t say ‘proximately caused by,’ “ Davies says. “It says ‘due to.’ “ And due to, he says, “is a slippery phrase. The big question will be: How far away will the line be drawn by the courts?” 22

Or by Feinberg. Boston College’s Plater thinks the administrator of the claims facility has a chance to make new law that could have a particularly important impact on how states in the region deal with such claims. Lawyers and others parsed Feinberg’s early comments about applying state law standards to claims because many of them impose tight restrictions on claims.

“In Louisiana, one of the limitations of state law is a $75 million cap on damages, and a lot of other states have rules akin to Robins Dry Dock” that bar recovery for economic losses, O’Neill says. “Florida courts have only recently allowed fishermen to collect in oil spills.”

O’Neill also worries about the releases claimants will be required to sign—and how quickly—if they settle claims through the Gulf Coast fund. “He’s said that he wants to tie this thing up in four years,” O’Neill says. “But the manifestations of this spill may not be seen in four years.”

CLAIMANT’S CALL

Feinberg says that while the oil is still leaking, claimants may collect emergency payments for immediate needs without waiving the right to sue BP in the future. After BP’s Deepwater Horizon rig exploded, a drill ship collected oil near the Louisiana coast. Saul Loeb/AFP Getty Images

Once the oil stops leaking and full damages can be assessed, a lump sum will be offered to claimants, according to Feinberg. If a October 2010 | Briefly Speaking • En Bref


claimant accepts the lump sum, he or she will be required to sign a waiver promising not to sue BP in the future. The temptation for claimants to accept a final settlement before they know the full extent of their losses “is a very real concern,” Feinberg told the ABA Journal, “and I want to make sure that when a lump sum is offered that the client fully does understand the nature of the release and the inability to go to court, and that there is full disclosure and transparency.”

OBA Holiday Food Drive 2010

But, Feinberg says, “it’s entirely up to the claimant to accept the lump sum.” And claimants who reject a settlement through the fund will be free to sue under OPA, maritime tort law, or any other applicable state or federal laws.

Have a Program? Bring a Can!

At the same time, however, Feinberg says the fund will not operate under an assumption that claimants should be represented by counsel. “The goal of this program is to minimize the legal technicalities and maximize efficient, swift payment,” he says. And Feinberg affirmed his intention to have the fund wrap up its work relatively quickly, even if the full damages from the spill have yet to be determined. The key, he says, is to offer a lump-sum settlement that is adequate to allow a claimant to “move on, while at the same time avoiding the possibility of additional litigation that in the end could be protracted, uncertain and costly.” Even if this means that some claimants might be undercompensated? “It may be undercompensation or it may be overcompensation,” Feinberg says. “It’s a very murky crystal ball. What’s important is that it is adequate to end the uncertainty and bring the matter to a close.”

Last year, the OBA collected 1,255 lbs of nonperishable food items. With your help, our goal is to collect 1,500 lbs in 2010! Donations will help stock the shelves of the Daily Bread Food Bank. Collection boxes will be prominently displayed in the OBA Conference Centre from October 1st.

www.oba.org/fooddrive Get involved in the fight against hunger

Reprinted with permission from the August, 2010 issue of ABA Journal. Copyright 2010, ABA Journal. All rights reserved. License ABA-13687-MES

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Briefly Speaking • En Bref | October 2010

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The Plight of the ‘Eco-Refugee’ International Protection for the Environmentally Displaced Peter Showler One predictable consequence of severe climate change during this century will be the forced migration

of millions of people. Loose media language already refers to these migrants as “eco-refugees” or “environmental refugees” although most would not meet the definition of a refugee contained in the UN Convention Relating to the Status of Refugees (“the Convention”). The truth is that we have neither a precise legal definition for environmentally displaced persons nor an accurate estimate of their numbers. The most commonly cited figure is 200 million by 2050 but it is acknowledged to be a highly speculative estimate. Despite the uncertainty, there are two preliminary issues worth considering, namely, the complexity of the environmental migration scenario and the potential international instruments for protecting the environmentally displaced. Let me first propose a rough definition: an environmental refugee is someone who has been forcibly displaced because of a severe environmental event induced by climate change. It is a simple definition but it masks several complexities that will challenge policy makers to craft something more precise. Here are some of the principal complexities. 1) Causality of the migration: Environmental causes can be complex: desertification, floods, landslides, severe storms, rising oceans. They may be immediate, repetitive or long-term events. Those causes are often linked with other migration drivers: violent civil conflicts, extreme poverty, the lack of potable water, arable land or civil society. 2) Forced vs. voluntary: Migration decisions often have multiple motives that may be more or less compelling. They include serious risk to life or health, deprivation of human rights, abject poverty, lack of opportunity for education or employment, economic gain. 3) Migration pattern: the migration may be internal or external to the country of citizenship. Cross border migration may be regional or inter-continental. 4) Duration: the migration (and need for protection) may be temporary or permanent. An example of these variances would be someone leaving a conflict zone where there is some threat of civil violence based on ethnicity as well as long-term desertification and immediate drought. The migrant is impoverished, unemployed, his crops have failed and two of five children have died because of malnutrition.

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If millions of migrants are forcibly displaced by environmental events, what kinds of protection are currently available and, if inadequate, what instruments can supplement that protection? It is generally accepted that the Convention definition of a refugee does not protect the environmentally displaced. The

Convention does not apply to internally displaced migrants and the harm feared must be due to a Convention ground: race, religion, nationality, political opinion or membership in a particular social group. This element of the definition eliminates natural catastrophes. There are three exceptions that would allow some migrants to claim successfully, namely where, the person migrates for multiple reasons, one of which relates to a Convention ground, where there is a forced internal relocation by the state for discriminatory reasons linked to a Convention ground and lastly, where there is a failure of state protection, again linked to a Convention ground. In addition to the Convention and asylum legislation, some countries, including Canada, provide ad hoc humanitarian assistance and protection for specific environmental events, but such protections are sporadic, reactive and inconsistent.

Some commentators have proposed expanding the Convention definition to include environmental disasters. That is unlikely to happen. The Convention imposes an obligation on the host state to grant protection to migrants who meet the refugee definition. The majority of signatory states have not fully complied with their current obligations toward the world’s 13 million refugees. They will not be eager to expand those obligations to potentially hundreds of millions of environmentally displaced people.

The more promising approach is a comprehensive set of guiding principles comparable to the U.N.’s Guiding Principles on Internal Displacement. The principles provide standards for the treatment and protection of the displaced, setting out a core of essential rights based on a matrix of UN human rights instruments. The principles focus on humanitarian assistance and can serve as a foundation for international and regional agreements in regard to specific environmental disasters, for example, the gradual disappearance of an island state. They also apply to the internally displaced. Some will criticize the proposals for being non-binding but that is the only means by which nations will meaningfully engage in long-term preparatory discussions on protection. The principles are not a panacea but for the complex and uncertain phenomena of forced environmental displacement, it is an important starting point. Peter Showler is the Director of the Refugee Forum at the Human Rights Research and Education Centre, University of Ottawa.

October 2010 | Briefly Speaking • En Bref


Survey of LGBTTQ Lawyers in Canada Ed Montigny

SOGIC (Sexual Orientation and Gender Identity Conference of the Canadian Bar Association) is preparing to conduct a detailed survey of lesbian, gay, trans-gendered, two-spirited, queer lawyers in Canada. As with similar surveys of minority groups within the legal profession, the goal is to gain a better understanding of the basic demographics of LGBTTQ lawyers (i.e., who are we, where are we, are there any patterns as far as distribution by geographic location, age, gender, area of practice, type of practice) as well as the interests and needs of this population.

The survey may also help to address long-standing questions relating to the equality of LGBTTQ lawyers in the profession, providing data as well as qualitative information to support discussions about being out in the profession, concerns about the impact of sexuality on career prospects, and the effects of geographic location on such issues. It is clear that increasing numbers of openly LGBTTQ lawyers are very active within professional associations such as the CBA and provincial bar associations. Their sexual orientation does not seem to prevent them from being willing or able to serve their profession. At the same time, anecdotal evidence suggests that at least a portion of LGBTTQ lawyers feel their careers would suffer if their employers knew of their sexual orientation, or that their orientation or identity could affect their clients negatively. How widespread are these views? Are they more likely to affect lawyers’ choices in different areas of practice or regions? What can be done to address such dynamics, and to enable all LGBTTQ lawyers feel welcome within the profession for who they are? And what effect do intersecting factors such as racialization, sex, gender identity, family status, and disability have on LGBTTQ lawyers? These are the questions the SOGIC survey seeks to address. There are obvious challenges related to obtaining information from a relatively ‘invisible’ minority, particularly from those individuals who feel it necessary to hide their sexual orientation or identity in the workplace. Nevertheless, gathering informaBriefly Speaking • En Bref | October 2010

tion is a first step to obtaining a fuller understanding of the circumstances, needs, and opinions of an important minority within the legal profession.

The Canadian Bar Association has provided funding to SOGIC to help establish this survey project and create a survey advisory committee composed of lawyers from across Canada. The first goal of this project is to secure major funding to allow social science researchers to design and implement a national survey and analyse the results, and the second goal will be to make recommendations to the CBA on what policies might be appropriate. The committee will advise on the research process and will frame final recommendations to the CBA. Under the guidance of Professor Kathy Lahey of Queen’s University, Faculty of Law, the SOGIC project committee is in the final stages of preparing its first grant applications. Two members of the national group of Law Society Equity Advisors have joined the advisory committee and discussions are under way as to what forms of support can be offered to the project by the various law societies.

The survey is scheduled to begin in 2012. At that time, members of the legal profession will be encouraged to support this project by helping to distribute and promote the survey and encouraging lawyers to complete it to ensure that as many LGBTTQ members of the legal profession as possible respond. As with earlier projects, such as the Touchstone Report, this survey is an opportunity for all members of the legal profession to learn more about each other and ourselves for the betterment of the profession as a whole. Ed Montigny is a past chair of SOGIC National, Vice Chair of the Administrative Law Section (OBA), member of the Equal Opportunity Committee (OBA) and a new member of the CBA Legal Aid Liaison Committeen

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How Green is My Law Office? Catching the Eco-Wave Nancy E. Cooper

The Secret to Any Big Lifestyle Change is to Start Simple. Global warming is emerging as more than just a plausible theory. Our vast stores of fresh water are steadily depleting. The BP disaster on the Gulf Coast confirms but one of the risks of our doomsday dependence on fossil fuel. So no matter how masterful your advocacy, there is simply no argument against cleaner air and cleaner water. Period.

By now, most offices probably have some policy in place for the three R’s (for the environmentally challenged, that is reduce-reuserecycle). If you have yet to begin, there is a virtual sea of on-line tips and web guides on how to catch the Green Wave. Indeed, there is so much information on the topic, it’s easy to get thrown off board. Where do you start? And once you do begin, where do you stop? It isn’t enough to buy recycled paper but should we be installing solar panels on the rooftop? The breadth of our eco-blueprint will naturally be a function of our time and money, those two elements that always seem to be in short supply, especially for the sole practitioner. No lawyer has the time to measure and compare the carbon impact of each piece of office equipment. Yet, one can’t simply ignore the pressing need for a change in the way we approach our use of the earth’s resources. The secret to any big change in lifestyle is to simply start and start simple. For your consideration, here is a bare-bones list for the frenzied but well-meaning lawyer who wants to take the first step towards being environmentally conscious. It’s simple, cheap and will get you started. •

Turn off the lights whenever you leave a room.

Reduce paper waste by using e-mail whenever possible. The industry of law on its own lays waste to a king’s forest of paper every single day.

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Turn off your computer and power bar when you leave the office.

• •

• • •

Buy only recycled office products. This is effortless and buying recycled paper is just the beginning. You can buy almost anything made in 100% recycled materials.

Switch your incandescent light bulbs to compact fluorescent lights. They use less energy and last much longer. Use a fax service like MyFax, eFax, Send2Fax, TrustFax. Faxing documents directly from your computer saves on paper and ink.

Work from home whenever possible. If you employ others, be flexible and open-minded about telecommuting. This trend is growing. Delegate. Put together a Green Committee to brainstorm on innovative and fun ways to help to preserve and conserve at the office.

Sustaining motivation is an important part of this quickstart guide. Living in Canada with its lush green spaces, clear lakes and rushing rivers, it’s easy to forget that we live on a planet with limited resources. We should all strive to build an office consciousness that is environmentally friendly. Be aware of the resources that you use at work. Be aware of how you may be affecting our earth in a negative way and think of ways to mitigate the damage. The Canadian Bar Association publishes a detailed guide on its website, authored by Janice Mucalov, LL.B., entitled “Greening Your Law Firm: A Practical Guide to Creating an Environment-Friendly Law Office”. Learn more about being green in the workplace: http:// www.cba.org/cba/practicelink/Bsky/greeningyourfirm.aspx. Nancy E. Cooper is a sole practitioner with a criminal law practice in Timmins.

October 2010 | Briefly Speaking • En Bref


Briefly Speaking • En Bref | October 2010

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Legal Grenades OBA Endorses Ontario’s Proposed Anti-SLAPP Law David Sterns

I

magine your client is a volunteer spokesperson for an environmental group which has spoken out at a public hearing against Acme Corp.’s violations. A few days later, Acme Corp. serves her and her organization with a statement of claim seeking millions of dollars in damages for defamation and an injunction against speaking out against Acme’s environmental practices. Rather than facing enormous legal bills and a long fight, your client decides to cease and desist and issue a public apology to Acme Corp. Justice served? Hardly! Chances are your client has just been SLAPPed.

SLAPPs, short for Strategic Lawsuits Against Public Participation, are legal grenades lobbed at citizens who engage in the public decision-making process or exercise their democratic rights of free speech and social activism. The plaintiff’s goal is to use the legal process – including lawyers and the public court system – to intimidate or punish citizens for speaking out. Rarely do these types of cases get to trial; the point is to force the defendant to defend a costly lawsuit or issue a coerced retraction. Most of the time, they accomplish their objectives without ever seeing the inside of a courtroom.

The Ontario Government is considering legislation to curb SLAPP lawsuits similar to legislation in other provinces. The advisory committee on anti-SLAPP legislation, chaired by University of Toronto Law Dean, Mayo Moran, asked the Ontario Bar Association for its input on the proposed legislation. The report of the OBA working group, chaired by Barry Weintraub, strongly endorsed anti-SLAPP legislation and made a number of important recommendations designed to ensure that the legislation is fair, balanced and true to its aim.

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The main feature of the legislation urged by the OBA’s working group is the opportunity for the defendant to seek summary dis-

missal of the suit before discovery. The defendant would have the initial onus at the hearing to show that the lawsuit is directed at its public participation, i.e. involvement in the legislative or policy-making process. Once this is shown, the defendant would benefit from qualified privilege for any statements made in the course of its public participation. The onus would then shift to the plaintiff to show that the claim has substantial merit (i.e., a substantial likelihood of success) notwithstanding the defendant’s qualified privilege. If the court finds that the action does not have substantial merit, the court will presumptively award the defendant its full costs. The legislation urged by the OBA will deter anyone considering using the legal process to cudgel citizens who exercise their democratic rights. It will also offer targets of SLAPP suits a speedy and effective way to nip the suit in the bud before facing the huge costs of discovery and trial. Also, by encouraging full-indemnity costs, the legislation would provide incentives to counsel to represent worthy defendants who might otherwise be unable to pay legal fees. Anti-SLAPP laws lawsuits present unique problems in our system as they potentially restrict a party’s access to the courts based on limited evidence presented at a preliminary hearing. The final report of the OBA’s Working Group was the product of vigorous and healthy debate on this worthwhile legislative initiative. David Sterns is a litigation partner at Sotos LLP and the Chair of the OBA Civil Litigation Section.

October 2010 | Briefly Speaking • En Bref


“Chairity” Begins at Home Strengthening OBA’s Commitment to the Community The OBA’s own “Sunshine Boy” Jason Cheung demonstrates why he was the right man for the job when it came

time to donate more than 300 stackable chairs, desks, bookcases and other furnishings to Community Living Toronto. Community Living Toronto was established in 1948 and assists thousands of individuals with an intellectual disability by providing places of work, housing and other services to help clients achieve their full potential. The chairs and other items came from the Conference Centre at the OBA as part of recent renovations that included replacing all the boardroom furniture and upgrading washroom facilities. STG_OBA_hfpg_287c_09_09

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Beyond the Accord Reflections from the Copenhagen Conference Laura Zizzo I was there when the international climate negotiations stood still, stalled in procedural debates with no way

forward in sight. Exhausted negotiators broke down in frustration and sometimes tears, wondering how the parties would ever come to agreement. I was there consoling Canadian youth leaders suffering from the after effects of the pepper spray used by the Danish police, watching arrests on the live-streaming television screens inside the Bella Centre in Copenhagen. I was there when thousands of civil society members were excluded from the final days of the conference due to security concerns, watching world leaders’ speeches and press conferences from off-site holding rooms for delegates. On Friday, December 18, 2009 we heard the news from President Barack Obama – there was no broad political agreement, but instead, a Copenhagen Accord, crafted by the U.S. China, India, Brazil and South Africa. In the words of President Obama, the Accord “does not bind the United States of America.” Of course, the U.S. President was desperately trying to avoid a repeat of the Kyoto Protocol experience where the U.S. executive signed on to a treaty that the U.S. congress never accepted. To me, it felt like the world was being held hostage to domestic interests in the U.S. and China.

In the December 2009 edition of Environews, the OBA Environmental Law Section newsletter, I asked whether a deal would be struck in Copenhagen. A deal was struck; just nothing like the one we hoped for or even expected. The Copenhagen Accord was an agreement forged outside of the negotiation process set up by the United Nations Framework Convention on Climate Change (UNFCCC). The Conference of the Parties (COP) failed to adopt the Copenhagen Accord in the final (extended) hours of the Copenhagen conference, merely agreeing to “take note” of its existence. The two negotiating tracks (i.e., the Kyoto track and the Long Term Cooperative Action track) did not come to any substantive agreement (although they did make progress towards that goal), and simply decided to keep negotiating. They agreed to complete the agreement at the COP meeting to be held in Mexico in December 2010.

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It is possible to see the Copenhagen conference as both a failure and a success. It failed to deliver even the “worst case” anticipated scenario (i.e., no political agreement). Nevertheless, it succeeded in drawing world attention to climate change in a sustained and unprecedented way. The conference highlighted those who are taking action, those who are already suffering, and the sub-national actors who are forging ahead despite the failure of the international negotiating process. Additionally, the Copenhagen Accord provided a forum for states to quickly submit mid-term (i.e., 2020) reduction targets to a regime that was globally subscribed to and will keep the momentum alive despite a lack of agreement in Copenhagen. The Accord also serves to fill gaps on specific issues like Monitoring, Reporting and Verification (MRV), fast track funding and pledges for longer term funding.

Political “Letter of Intent” The Copenhagen Accord can be understood as a political “letter of intent.” It recognizes the need to keep the global increase in temperature below two degrees Celsius and generally uses the language of the UNFCCC and the Kyoto Protocol in its descriptions.

Many nations have announced mid-term reduction pledges. The Copenhagen Accord provides the opportunity to record those pledges as it invites Annex I parties (i.e., the industrialized countries under the UNFCCC) to submit domestically developed commitments. It also integrates developing countries in a new way, inviting them to submit Nationally Appropriate Mitigation Actions (NAMAs) to be added to Appendix II of the Accord. Countries were to associate with the Accord and pledge commitments by January 31, 2010. That deadline passed with less than one-third of the world’s countries making submissions. Some countries, namely China and India, did not mention the Copenhagen Accord in their submissions at all. It is expected that more countries will come forward in the coming months with pledges; however, it appears unlikely that the Copenhagen Accord will develop into a comprehensive global agreement. The terms of the submitted country pledges have been posted on the UNFCCC website. Canada and the U.S. both pledged a 17% reduction from 2005 levels by 2020, dependant on the outcome of domestic legislation in the U.S. Meanwhile, Australia used a 2000 base-year and pledged a range of reduction from five to 25%, depending on global action. Aside from Kazakhstan, which pledged a 15% reduction from a 1992 base-year, all other pledging industrialized countries used a base-year of 1990 and pledged reductions between five and 40% by 2020. This sample shows the divergent results of domestically produced emissions pledges and foreshadows the challenges that will come as we work towards comprehensive global action. China, like other Non-Annex I countries, emphasized that its pledge was voluntary in nature and should not be considered binding on the nation. It pledged as follows: China will endeavor to lower its carbon dioxide emissions per unit of GDP by 40-45% by 2020 compared to the 2005 level, increase the share of non-fossil fuels in primary energy consumption to around 15% by 2020 and increase forest coverage by 40 million hectares and forest stock volume by 1.3 billion cubic meters by 2020 from the 2005 levels.

India pledged to “endeavour to reduce the emissions intensity of its GDP by 20-25% by 2020 in comparison to the 2005 level” and also emphasized the voluntary nature of its statement. Similar statements were made by other countries, although some of the least developed countries, such as Botswana, took a more descriptive approach to the NAMA pledge. The Maldives pledged carbon neutrality by 2020. There was a wide range of

October 2010 | Briefly Speaking • En Bref


actions and reduction levels pledged showing the diversity of approaches globally.

The Accord recognizes that funding from the developed world is necessary to aid adaptation and mitigation in developing countries, and sets up a mechanism to provide short and long term finance for use in developing nations. Developed countries have committed to new and additional resources approaching 30 billion USD over 2010-2012 and to jointly mobilize 100 billion USD a year by 2020 to assist developing countries. Parties to the Accord decided to establish the Copenhagen Green Climate Fund as the operating entity of the financial mechanism of the Convention to support mitigation activities in developing countries. These activities include REDD-plus, adaptation, capacity-building, technology development and technology transfer. The parties also decided to establish a Technology Mechanism to aid in quick transfer of technology, but this will be “guided by a country-driven approach and based on national circumstances and priorities,” meaning that there will be no over-arching global demands placed on countries with respect to technology transfer. It is unclear at this point how the Copenhagen Green Climate Fund and Technology Mechanism will operate. The Accord will be reviewed in 2015 when parties will consider strengthening the long-term goal referencing various matters presented by the science, including in relation to temperature rises of 1.5 degrees Celsius.

Promised Quick Start Funding

The Copenhagen Accord was not a decision of the COP, but it sets up a new administrative structure for funding and setting targets that utilizes UNFCCC Secretariat resources. As a result, there are unresolved legal questions related to the ability of the COP Secretariat to act on the demands of the Accord. The Copenhagen Accord specifies that it is operational immediately and does not require ratification to have effect. Since the Accord does not require domestic ratification by the parties, the promised quick-start funding from developed countries can begin to flow immediately. The assumption, of course, is that countries will follow through on their promises. Reflections from Yvo de Boer and Moving Forward

In a press briefing, then UNFCCC Executive Secretary Yvo de Boer stated that, although Copenhagen did not produce an agreement that the world expected, it accomplished three important outcomes: 1. It raised climate change issues to the highest level of government attention (he suggests this is the only level where it can truly be resolved); 2. The Copenhagen Accord showed that there is long term commitment to a global response; and 3. Substantive negotiations (away from the cameras) brought an almost full set of decisions “near” to completion.

Mr. de Boer suggested that governments need time to digest what has happened and are in a cooling off period. He is confident there may be a way forward to grasp a bigger goal and ended the press conference by saying, “If countries follow Copenhagen’s outcomes calmly, with their eyes firmly fixed on the advantage of collective action, they have every chance of completing the job.”

The job of coming to a fair, ambitious and binding agreement appears to be a herculean task. A recent report produced by Climate Interactive projects that if current Copenhagen proposals were fully implemented, the average global temperature would increase by approximately 3.9 degrees Celsius by 2100, which is well above the 2 degree maximum stated in the Accord. More work and more ambition are required, quickly.

Briefly Speaking • En Bref | October 2010

Millions of Protestors The Copenhagen conference clearly illustrated that climate change is at the forefront of global consciousness. Thousands of side events and demonstrations in Copenhagen during the conference showed active engagement from a wide range of actors – academics, industry, youth, and local governments, just to name a few. The millions of protestors rallying around the Copenhagen conference across the globe showed a united and growing movement. The time has come for all actors, individuals, organizations and levels of governments to examine their role in the response to global climate change. The UN undoubtedly cannot address the challenge alone. Its process is one part of the global solution, but as Copenhagen showed, we cannot and must not put all our eggs in its slow-moving basket. An adequate response will require creative and courageous action across the spectrum. It is my hope that the procedural frustrations felt in Copenhagen will be overshadowed by the global mandate to proactively work towards solutions at all levels. Laura Zizzo is a partner at Zizzo Allan Climate Law

*This article was originally published in the OBA’s Environmental Law Section’s newsletter, Environews, Vol.19, No.3.

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Free Event Career Symposium Addresses the ‘Greying Bar‘ and Life Beyond Bay Street

A

rticling & Beyond – Finding Work That Works for You is the must-attend legal career symposium taking place on November 19th at the Law Society of Upper Canada (LSUC).

Law students, articling candidates and new lawyers will obtain the information and tools they need to explore a variety of articling and career opportunities, with a particular emphasis on careers in smaller firms and smaller communities. Attendees will participate in interactive workshops and meet with lawyers from a variety of practice areas and communities across the province. The symposium will help to address the growing issue of the ‘greying of the bar’ by encourag-

“It’s the smartest career move you’ll make this year”

Other Articling Resources: The Articling Registry The Articling Registry was launched in June 2009. The online registry is a recruitment and job search tool that is available to law firms, legal organizations, law students and licensing candidates, where firms can post available articling positions and search articling candidates’ profiles, while candidates can use the registry as a tool in their job search to review articling opportunities.

The registry helps sole and small firms – particularly those outside of major urban centres – to locate law students or licensing candidates who are interested in available articling positions. Non-traditional articling placements

ing new lawyers to pursue careers in smaller communities throughout Ontario, many of which are or will be most affected by the ageing bar.

This free event is a great opportunity for established lawyers or law firms to make valuable connections with students and new lawyers from across the province, and for lawyers to encourage interest in their practices and their communities. If you are seeking to hire an articling candidate, looking for a lawyer to join your practice, or contemplating retirement and are interested in selling your practice, register and attend the symposium – it’s the smartest career move you’ll make this year. The career fair and conference will take place on November 19, 2010 and is being hosted by the OBA, in partnership with the LSUC and the County & District Law Presidents’ Association.

There is no fee to register and free transportation will be provided for law students. More information is available online: http://ecom.lsuc.on.ca/articling/articlingsymposium. jsp, or visit us on facebook or twitter. 32

The Law Society encourages firms to make articling opportunities available to articling candidates. Firms who would not typically be able to employ an articling candidate may consider non-traditional articling structures, such as joint articles and part-time articles.

For joint articles, a student-at-law can split his or her time between two or more articling principals in many different ways – the student can spend 2.5 days a week at each firm or one week at one firm and the next at the other. The firms can submit joint or individual education plans, and normally share the articling candidate’s salary. Articling & Beyond – Finding Work That Works For You When: Friday, November 19th Where: LSUC, Toronto Free Registration: Online by November 1st. Free Transportation For Students! Join us on Facebook and Linkedln by searching Articling & Beyond

October 2010 | Briefly Speaking • En Bref


Are you hoping to one day retire and actually sell your practice?

Do you want to hire a law student or build your practice with a new lawyer?

Do you live in a wonderful community and want to encourage its continued success?

the Law Society of upper Canada, the County & District Law Presidents’ Association & the ontario Bar Association

InvIte You to A SPeCIAL InItIAtIve FoR What? Articling & Beyond: A Symposium & Career Fair for Law Students & New Lawyers

Why Are We Doing It? The “Greying of the Bar” is, or will soon be a reality for many communities, including yours. This is an issue – for your community and for you. We need to encourage young lawyers to live and practice in smaller communities throughout the province. And we need your help.

Why should YOU attend?

When? November 19, 2010 1:00-5:00 pm Where? The Law Society of Upper Canada

It’s a great opportunity to connect with law students and young lawyers from across Ontario. It’s your chance to promote your practice, your community and all of the reasons why you and your colleagues work and live there. And it’s free.

For more details go to http://ecom.lsuc.on.ca/articling/articlingsymposium.jsp

Sharing an Articling Candidate is Easier Than You Think Are you interested in hiring an articling candidate, but are not sure if you have enough time or work? Consider sharing an articling candidate with one or more lawyers in your community. Joint Articles add tremendous value to your firm and support the development of our profession.

• Complete a Simple Application Form • Work out the Schedule • Finalize the Plan (complete a one page form at the beginning and at the end of articles)

Contact the Articling Office at the Law Society of Upper Canada articling@lsuc.on.ca or 416-947-3315 or 1-800-668-7380 ext. 3315

Interested in Joint Articles? The Law Society is here to help.

We can match you with another lawyer in your community and help you create a Joint Articling position that works for you. All of the details and forms are just a click or a telephone call away.

http://rc.lsuc.on.ca/jsp/licensingprocesslawyer/jointArticles.jsp

Briefly Speaking • En Bref | October 2010

Legal information and support designed for you.

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A Greener Future Environmental Disclosure in Securities Regulation Maria Sagan As someone who is interested in securities law, I often observe environmental topics converging with securities regulation. This convergence is underscored by the environmental disclosure requirements increasingly being placed on security issuers. The United States recently provided guidance on the future of environmental disclosure, moving in the direction of more rather than less. While this disclosure may be viewed as an extra burden on issuers, it is information that is becoming increasingly important to investors and especially to the investors of the future. Canada requires environmental disclosure in National Instrument 51102 Continuous Disclosure Obligations and the Ontario Securities Commission has issued a staff notice based on these obligations. More guidance on environmental disclosure is anticipated in the near future.

Environmental disclosure not only helps investors understand a corporation’s environmentally risky activities, but also tells them what the corporation is doing to minimize such environmental risk. It encourages companies to be environmentally responsible and promotes environmental transparency. Environmental disclosure helps corporations understand the financial risks of environmental liabilities. It allows corporations to assess their impact on the environment as well as to minimize it, thereby not contravening any laws or regulations.

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Despite the benefits to corporations, environmental disclosure is primarily an investor-driven requirement. While environmental disclosure may not be a priority for present-day investors, it must be so for the investors of the future – those who are being educated in an environmentally conscious world. Investors should carefully consider a corporation’s environmental disclosure information since risky environmental practices may, with today’s ever more stringent environmental laws and regulations, lead to a risky investment – the BP oil spill being one recent example. Investors hold the power

to both improve and expand environmental reporting. At the same time, they have the capacity to extinguish it.

Environmental disclosure must meet the needs of many different entities – ones with often divergent interests. These include investors, issuers, the government, and the Canadian public. Environmental disclosure is not possible without the willing participation of those who depend on a corporation’s success, as well as those who depend on environmental protection. While relatively few may fall under the former category, we are all captured by the latter. Disclosure of environmental risks and liabilities should not be viewed as, nor should become, a burden on corporations. The government should work with corporations to create positive and manageable disclosure guidelines. It should reward transparent disclosure and commendable environmental practices. Environmental disclosure creates many “winners” - everyone benefits from a healthier environment, issuers benefit from less risky environmental activities, and investors benefit from knowing that their investment is unlikely to face an environment-related loss.

Environmental disclosure is an emerging and popular trend. We live in a world dominated by large corporations, and it is this domination that requires us to ask the very best of corporations. After all, while corporations exploit the world’s resources, they are also protectors of the environment and gardeners of the earth’s future. Corporations should inspire each other to be more environmentally conscious. As lawyers we should also encourage them to be so. Maria Sagan is an articling student at McMillan LLP.

October 2010 | Briefly Speaking • En Bref


OBA Announces Heather McArthur Memorial Young Lawyers’ Award It has been just more than a year since her untimely passing, but Heather McArthur is alive and well in the memories of members and staff at the OBA. To celebrate her life, the OBA has created the Heather McArthur Memorial Young Lawyers’ Award to be given out at the 2011 Judicial Reception next spring. “We thought it the perfect tribute to recognize the achievements of young lawyers at the OBA,” said former OBA President Jamie Trimble. “Heather had a real interest and keen eye for young talent coming up through the organization. She wanted to give younger members an outlet for their ideas and creativity that they might not yet have experienced in their early working life.” Trimble said the idea of honouring McArthur with an award in her name began to germinate at her funereal reception. “Many members and staff approached me expressing their

worked hard to make people feel welcome and valued at the OBA. That is partly why her death came as a shock; Heather was such a selfless person that many never knew how ill she really was.”

McArthur held almost every position one could achieve within the OBA over her 20-year career with the association. Though she is best remembered as director of continuing legal education (CLE), McArthur served as Director of Sections, Director of Technology and Acting Executive Director of the OBA. Mississauga lawyer Peter Wilson also worked very closely with McArthur as an active contributor to CLE programming. “She made us better than we were,” he recalled. “She made sure that the programs that were delivered and the performance by the speakers, content of those programs, how they were presented, the quality of the brochures, how they were explained . . . that was Heather. She was the one who took the time to ensure everything was topnotch.”

“She made us better than we were”

desire to do something to recognize Heather. It was heartfelt and we all agreed at the Board that it was the right thing to do. It really is testimony to her reputation that so many felt so strongly about honouring her in this way.”

For Valerie Dallas, McArthur was more than a fellow staffer at the OBA. “She was like a second mother to me. She hired me and we essentially started our careers together at the OBA. She was there for me every day. It was October 1, 1990 that I joined the OBA, I remember it that clearly. I reported to her directly for more than 13 years and I have nothing but fond memories.”

Tracy Dallas, OBA director of operations, holds the same affection for McArthur. “I remember many years ago when I was a manager I had to speak to Heather about a conflict between staff. It was a difficult conversation because I had to ask Heather to stand down on an issue. I was worried about how to approach her, given she was in a senior position to me at the time. She sensed my anxiety and simply said, `Now dear heart, what is on your mind?’ … I told her the problem, and that was it. Heather understood and the conflict was resolved.” Trimble concurs, “She had tremendous empathy. Volunteers loved her because she devoted so much time to them. She Briefly Speaking • En Bref | October 2010

Cindy Ng, Senior CLE Coordinator who worked with McArthur for more than a decade, remembers her mentor as caring, a good listener and very enthusiastic. “Heather was not only a superb supervisor at work, but also a good friend. She asked her husband not to reveal her illness to me so soon, knowing very well that I would be too upset to learn about the truth.”

McArthur is survived by her spouse, Paul Truster, and son, Colm. She was a fiercely proud mother; just weeks before passing away, she attended the graduation ceremony of her son, Colm, from Fleming College. Though she was very ill and weak at the time, Heather stood and clapped for her son – as well as for every student in his graduating class - for the hours-long ceremony. Jamie Trimble offers a final thought. “Many, many people benefitted from Heather’s work at the OBA. I am proud that we were able to make this award a reality, and to bestow it upon a young lawyer beginning his or her career. This is what Heather would have wanted.”

35


snapshots

The OBA Board of Directors have a little fun at their year-end photo shoot.

Ontario Premier Dalton McGuinty (left) with OBA President Lee Akazaki (centre) and celebrity chef David Rocco (right).

OBA Summer Social

Lee Akazaki gets his head in the game at the employee staff summer social. Jamie Trimble (centre) enjoys a few magic tricks at the OBA’s carnival-themed Summer Social.

Young Lawyers’ Division Blue Jays Game

36

Past-President Carole Brown tries her luck at a game of chance.

On June 23rd, 2010, the OBA’s Young Lawyers’ Division watched the Toronto Blue Jays take on the St. Louis Cardinals at the Rogers Centre. Proceeds from the fundraiser were donated to the Jays Care Foundation. Go Jays!

October 2010 | Briefly Speaking • En Bref


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October 2010  

Briefly Speaking is the Ontario Bar Association’s official magazine, reaching more than 17,000 lawyers, judges and law students. As the OBA’...

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