2011 - December by Ontario Bar Association

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

December 2011 | Vol. 36 No. 6

EnBref

Brieflyspeaking Ontarioâ&#x20AC;&#x2122;s New Attorney General

The Honourable

John Gerretsen

INSTITUTE 2012 LEARN.THRIVE. SUCCEED.

Continuing Professional Development February 9â&#x20AC;&#x201C;10 Westin Harbour Castle Conference Centre

February 11 Criminal Justice Only The Conference Centre at the OBA

24 CPD Programs 6 Special Events www.oba.org/Institute2012

BRIEFLYspeaking OBA Officers/ Comité directeur de l’ABO Paul Sweeny President/Président Morris A. Chochla 1st Vice President/1er Vice-président Pascale Daigneault 2nd Vice President/2e Vice-président Sean M. Kennedy Secretary/Secrétaire Douglas R. Downey Treasurer/Trésorier R. Lee Akazaki Immediate Past President/Présidente sortante Steve Pengelly Executive Director/Directeur exécutif

12 20 26 48

Fates Align for New Law School

Ontario’s New Attorney General

Equality in the Profession Changes on the Horizon for Canada’s Refugee System

Editorial Board/Comité rédacteur Jamie Trimble Chair / Président Hughes Amys LLP Mark L. Berlin Institute on Governance in Ottawa Simon Borys Student Editor-Queen`s University

FEATURES 2 2011-2012 OBA Table Officers 24 The Lawyers of the Legislature

Sarah L. Boyd Jackman & Associates

30 Dean Lorne Sossin I J. Andrew Sprague

Alastair Clarke York Community Services

32 Institute 2012 I Designed for Your Success I Andrew Pinto

Jacqueline Armstrong Gates Gowlings

34 Probing the X Factors in Multi-party Mediation I Michael G. Cochrane

Patrick James Pinto Wray James LLP

36 In the Dean’s Chair I Sébastian Grammond I Filippo Conte

E. James T. Hook Hook Seller & Lundin LLP

42 Ontario’s New Pension Division Rules I James Pierlot

Elizabeth C. Mourao Ricketts Harris LLP

52 The Evolution of the Motion for Extension of Time I Andrea Sanche

Questions or Comments? / Questions ou commentaires?

Editorial Team, Briefly Speaking/ Rédaction, En bref Catherine Brennan Editor/Rédactrice Spécialiste de communications 416-869-1047 ext/poste 357 cbrennan@oba.org Cheryl Crocker Marketing Specialist/ Spécialiste marketing 416-869-1047 ext/poste 309 ccrocker@oba.org

54 Changing Climate, Changing Legal Responsibilites I Laura Zizzo and Travis Allan

COLUMNS 4 President’s Message | Message de la président | Paul Sweeny 8 Nota Bene 18 Snapshots I 2011 Award for Excellence in Civil Litigation 40 Just for Laughs I The Druid Orthodox Temple v. Jock the Mover | Marcel Strigberger 46 Supreme Court of Canada Update | Eugene Meehan, QC

Filippo Conte Bilingual Public Relations Lead/ Responsible bilingue des relations publique 416-869-1047 ext/poste 346 Janet Weldon Graphic Design/Graphisme 416-869-1047 ext/poste 363

Briefly Speaking • En Bref | December 2011

2011-2012 OBA Table Officers Paul Sweeny President Paul is a partner with the litigation firm Evans Sweeny Bordin LLP. He is certified as a specialist in civil litigation by the Law Society of Upper Canada. Paul was an elected member of the OBA Council from 2002 to 2008 and served on the association’s Board of Directors from 2008 to 2011. He is a past president of the Hamilton Medical-Legal Society and past director of The Advocates’ Society. An active member of the Hamilton community, Sweeny is commencing his eighth year as the chair of the Legal Sector of the United Way Fundraising Campaign. He is a past member of the Community Editorial Board for the Hamilton Spectator and past trustee of St. Joseph’s Healthcare. Paul intends to spend his term as OBA President advancing the priorities of lawyers and working to highlight the value the profession offers to society.

Morris Chochla 1st Vice President Morris specializes in professional errors and omissions, products liability, coverage disputes, and construction claims. Morris has been a guest speaker at the Canadian Society for Civil Engineering, the Canadian Association of Student Engineers, Lloyds of London, the Architects and Engineers Loss Control Program for Simcoe Erie/Encon, and the Insurance Society of Philadelphia. He has presented papers at the Annual Meeting of the Canadian Independent Adjusters Association, and at the Ontario Bar Association Annual Institute. Morris has written papers on the insurers’ duty to defend, coverage issues and a variety of topics related to professional engineers, and civil procedure. Morris is a past chair of the OBA Audit Committee

Pacale Daigneault 2nd Vice President Pascale is managing partner of Fleck and Daigneault in Point Edward (Sarnia), where she practises primarily in plaintiff litigation and wills and estate planning. She is dedicated to the association, having served as chair of the OBA Public Affairs Committee, OBA director-at-large for the southwest region, and as vice chair of the OBA Sole Small Firm and General Practice Section. An active member of the legal community, she has been a director of the Ontario Trial Lawyers Association and served in various roles within the Lambton Law Association. Pascale has presented CLE seminars on many topics for a variety of provincial and national legal organizations. She has written articles for presentation and has been published in several newsletters and periodicals.

December 2011 | Briefly Speaking • En Bref

Sean Kennedy

Secretary

Sean Michael Kennedy is currently pursuing a Ph.D. in law at Osgoode Hall Law School of York University. His research focuses on associational rights under the Charter of Rights and Freedoms and the broader issue of the constitutionalization of labour law. He also teaches constitutional theory and the Charter as a teaching assistant in the Law and Society program at York. Prior to his academic career, Sean practised as labour and business counsel in increasingly senior positions in the law department of Canada Post Corporation from 1985-2010. Sean is a dedicated volunteer of the OBA, where, in addition to his role as Secretary of the Board of Directors, he serves as chair of the Compensation and Human Resources Committee, member of the Governance Committee, a voting OBA Council Member and as a voting CBA National Council Member.

Douglas Downey Treasurer Doug is designated as a Specialist in Real Estate Law by the Law Society of Upper Canada. In 2008, Doug was recognized as “Lawyer of the Year” by the Simcoe County Law Association. In 2006, he was named Business Leader of the Year by the Orillia Business Association. In May 2007 Doug was appointed to chair a panel to develop a vision for the Trent Severn Waterway, the largest federal asset in Ontario. In addition to staying active with the Ontario Bar Association as Secretary on the Board of Directors, he has served for six years as city councillor with the City of Orillia and three years on the Board of Directors of Ontario Small Urban Municipalities. He is past-president of the Orillia District Chamber of Commerce and Past-President of the Kiwanis Club of Orillia. Doug is currently the host of ‘Politically Speaking, Orillia’ on Rogers TV. This is a current events show with interviews of federal, provincial, municipal and school board elected officials.

R. Lee Akazaki Immediate Past President Lee is a bilingual civil litigator practising in Toronto with Gilbertson Davis Emerson LLP, in commercial civil litigation, insurance law, personal injury, property damage, coverage disputes, professional responsibility, and property title defence. He is certified by the Law Society of Upper Canada as a Specialist in Civil Litigation. Lee serves the profession through a variety of roles with several legal organizations: as a member of the OBA’s Main Continuing Legal Education Committee, as an OBA delegate for the Uniform Law Conference of Canada, as an OBA representative on the Attorney General for Ontario’s Justice Partners Advisory Committee, as the civil litigation representative to the OBA Civil Justice Reform Working Group, as a member of the Law Society’s Certified Specialist Review Group of the Professional Development and Competence Committee, as a founding member of the Law Society of Upper Canada’s Barrister Advisory Group, and more. As 2010-2011 president of the OBA, Lee focused on empowering lawyers in every region of Ontario and on preserving the legal profession’s culture of continuous learning and diversity.

Briefly Speaking • En Bref | December 2011

President’s Message

The Public Perception of Lawyers Paul Sweeny

uring my term as president, I have made a commitment to address the public perception of lawyers. One of the challenges we face is the discrepancy between what we actually do and what the public perceives that we do.

I want to take this opportunity to address the work of criminal lawyers.

As the festive season approaches, there are more opportunities for cocktail parties and for lawyers to be cornered and asked the age old question: “How can you defend someone you know is guilty?” The stock answer is that the person isn’t guilty until he is found guilty “How by a court, but that is never a satisfactory answer for the untrained ear. It’s a lawyer’s answer. What should we really say? We should say that criminal lawyers are the backbone of the justice system. They protect and support the rule of law. They are heroes who fight for our rights on a daily basis.

You can start by getting your inquisitor to agree with the general proposition that everyone has a friend or child who has found themselves in legal trouble. If any of us has ever doubted that even our friends, children and neighbours could end up, however temporarily or unfairly, on the unpleasant end of the justice system, surely we stopped doubting it when we saw a picture of a former attorney general in the back of a police car.

The problem for the friend, child or neighbour can be a result of a moment of moral weakness, poor judgment or anger and frustration. We can never forget that some of them have actually committed no crime but were in the wrong place at the wrong time and, even those who have, are good people who have made a mistake. They find themselves arrested, charged and, perhaps, in custody. The full pressure of the state is bearing down on them. They are likely alone and feeling deep shame, much deeper than that sinking feeling in the pit of your stomach many of us feel when we pass the police cruiser parked at the side of the highway and glance down at the speedometer to see that, as we already suspected, we were breaking the law.

can you defend someone you know is guilty?” You could ask your cocktail-party inquisitor, “What would you want for your friend or child?” You want someone who will help them. You want someone who will not judge them but will use all her skill and energy to navigate through a system which is archaic, foreign and complex. Your friend is now just one of the many accused. She is completely alone and unsure–even about life’s most basic questions - When will he eat? What does she do? What will happen next? Where will he go? Although your friend or child may have made a mistake –maybe even a big mistake–he is a good person. You want your friend to have the best criminal lawyer he can find.

December 2011 | Briefly Speaking • En Bref

President’s Message That criminal lawyer will use her best efforts to ensure that your friend receives “the benefit of the doubt”; that is, the benefit of the requirement that the Crown “prove the elements of the offence beyond a reasonable doubt.” The criminal lawyer has one concern, and one concern only: the rights of your friend. The criminal lawyer will review the Crown’s case and provide advice. Your friend will listen. Your friend will speak openly because the solicitor and client relationship ensures confidentiality. Based on the knowledge gained in that protected exchange, it may be agreed that the negotiation of a plea arrangement is in your friend’s best interest. The criminal lawyer will engage in negotiation with the Crown to achieve the best resolution possible.

In the course of your cocktail party conversation, remind your inquisitor that it is near the end of the process, during the sentencing, that his friend may feel most abandoned and alone, but his criminal lawyer will be beside him— even if no one else is. Perhaps the most important work done by criminal lawyers is their efforts in negotiating and advocating for their clients on the appropriate sentence. Every day, and I mean every day, throughout this prov-

26 Briefly Speaking (Multi-tool) 2:51 ince, lawyers practising criminal law 12/18/08 are helping ourPM

friends and family members. They are analyzing the Crown’s case, reviewing the evidence, thinking only about the best interests of their clients. Their energy is devoted to protecting the rights of our friends and family. Whether practising in large urban centres, suburbs or small towns, they all do the same work.

Every day, and I mean every day, throughout this province, lawyers practising criminal law are helping our friends and family members. Yes, there are high profile cases with unimaginable cruelty and violence that snatch the headlines. But they are rare – so rare – and the procedural safeguards and the rights we may question when afforded to those accused are the same rights we are so glad are afforded to our friends and family members. Criminal lawyers devote their energy to protecting the rights of our family members. They are worthy of the respect and admiration of the whole world. They certainly get that respect and admiration from me. Paul R. Sweeny, Evan Sweeny Bordin LLP

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Message du président

La perception des avocats et avocates par le public Paul Sweeny

urant mon mandat à la présidence, j’ai résolu de m’intéresser de près à la perception des avocats et avocates par le public parce qu’il existe un écart entre ce que nous faisons dans la réalité et ce que le public perçoit.

Je veux saisir cette occasion pour parler du travail des avocats en droit criminel.

À l’approche du temps des Fêtes, les occasions de rencontres ne manqueront pas et des avocats se feront poser la même vieille question : « Comment pouvez-vous défendre une personne que vous savez coupable? » La réponse type de l’avocat c’est de dire qu’une personne est innocente jusqu’à ce qu’un tribunal en décide autrement, mais cela ne satisfera pas un non-juriste. Alors que doit-on répondre?

Comment pouvez-vous défendre une personne que vous savez coupable?

Nous devrions dire que les avocats en droit criminel sont le maillon principal du système de justice. Ils protègent et soutiennent la primauté du droit. Ce sont des héros qui défendent nos droits quotidiennement.

Vous pouvez commencer par obtenir de votre interlocuteur d’accepter la proposition générale suivante : tous ont un ami ou un proche qui a eu des ennuis juridiques. Si l’un d’entre nous a déjà douté que nos amis, nos enfants ou nos voisins puissent – même temporairement ou injustement – avoir maille à partir avec la loi, ce doute s’est sûrement dissipé quand nous avons vu dans les médias une photo d’un ancien procureur général sur le siège arrière d’une voiture de police.

Le problème de l’ami, de l’enfant ou du voisin peut résulter d’un moment de faiblesse morale, d’une erreur de juge-

ment ou de la frustration. Nous ne devons jamais oublier que certains peuvent s’être retrouvés au mauvais endroit au mauvais moment et que même certains auteurs de délits sont de bonnes personnes ayant commis une erreur. Ils se retrouvent en état d’arrestation et, possiblement, en détention. Ils ont sur eux tout le poids de l’État.

Ils se sentent seuls, honteux. C’est bien pire que le serrement au creux de l’estomac que l’on ressent en passant près de l’auto-patrouille stationnée au bord de la route à une vitesse qui, nous le savons, fera apparaître les gyrophares dans notre rétroviseur. Vous pourriez demander à votre interlocuteur du temps des Fêtes : « Que souhaiteriez-vous pour votre ami ou votre enfant? » Vous voudriez que quelqu’un les aide. Vous voudriez quelqu’un qui ne les jugera pas, mais qui utilisera ses compétences et son énergie pour leur permettre de naviguer dans un système archaïque, étranger et complexe. Votre ami n’est plus qu’un parmi d’innombrables accusés. Il est complètement seul et dans l’incertitude : Quand mangera-t-il? Que doit-il faire? Quelle est la prochaine étape? Où ira-t-il? Même si votre ami ou votre enfant a commis une erreur – peut-être même une grosse erreur – c’est une bonne personne. Vous voulez pour votre ami le meilleur avocat en droit criminel disponible. L’avocat criminel fera de son mieux pour s’assurer que votre ami reçoive le « bénéfice du doute », c’est-à-dire s’assurer que la Couronne établisse sa culpabilité au-delà de tout doute raisonnable. Le seul souci de l’avocat en droit criminel, ce sont les droits de votre ami. Son avocat examinera la cause de la Couronne et prodiguera des conseils. Votre ami écoutera et pourra parler ouvertement parce que les rapports avocat-client se déroulent sous le sceau de la confidentialité. December 2011 | Briefly Speaking • En Bref

Message du président

À partir des renseignements obtenus dans ces échanges confidentiels, il est possible qu’on arrive à la conclusion qu’une négociation d’aveux soit dans le meilleur intérêt de votre ami. L’avocat négociera avec la Couronne en vue du meilleur règlement possible.

Tous les jours, sans exception, dans cette province, des avocats en droit criminel aident nos amis et nos proches. Rappelez à votre interlocuteur du temps des Fêtes que le moment où votre ami se sent le plus seul et abandonné soit à la fin du processus, au moment de la détermination de la peine. Là encore son avocat se tiendra à ses côtés. Peut-être sera-t-il le seul à le faire. D’ailleurs, la négociation et les plaidoyers en faveur de la peine la plus appropriée comptent parmi les tâches les plus importantes des avocats en droit criminel.

Ils analysent la cause de la Couronne, passent en revue les preuves, ne pensent qu’aux meilleurs intérêts de leurs clients. Leur énergie sert à protéger les droits de nos amis et de nos proches. En milieu urbain, dans les banlieues ou dans les petites villes, ils font tous le même travail.

Bien sûr, il existe des causes fortement médiatisées, d’une cruauté et d’une violence inimaginables, qui font les manchettes. Mais elles sont rares. Et les protections procédurales qu’on hésiterait peut-être à accorder à ces accusés sont les mêmes que celles que nous sommes heureux d’accorder à nos amis et proches. Les avocats en droit criminel s’efforcent de protéger les droits de nos proches. Ils méritent le respect et l’admiration du monde entier. En tout cas, moi, je les respecte et je les admire.

Paul R. Sweeny, Evan Sweeny Bordin s.r.l.

Tous les jours, sans exception, dans cette province, des avocats en droit criminel aident nos amis et nos proches.

Briefly Speaking • En Bref | December 2011

Nota BenE

Nota Bene nota bene nota bene nota bene nota bene nota bene nota bene nota bene nota bene Stephen Erlichman, of Fasken Martineau DuMoulin, has been appointed executive director of the Canadian Coalition for Good Governance (CCGG).

Mr. Erlichman has practised corporate and securities law for more than 30 years in Canada and the U.S. He is currently a senior partner at Fasken Martineau based in Toronto and heads the firm’s Investment Products & Wealth Management group as well as its Private Equity group. The mission of the Canadian Coalition for Good Governance is to represent Canadian institutional shareholders in the promotion of corporate governance practices that best align the interests of boards and management with those of the shareholder. The Coalition’s 47 members manage approximately $2-trillion of assets on behalf of Canadian investors. David R. Wingfield of WeirFoulds was seconded to the Competition Bureau Legal Services for a two-year term as executive director and senior counsel. His term commenced on September 12, 2011.

David has acted on some of the largest and most important litigation matters in Canada and as counsel on significant international litigation. He is recognized as one of

Canada’s leading cross-border and corporate commercial and securities law litigators and has practised internationally in association with Fountain Court Chambers, the leading London commercial chambers. During his period of secondment David will remain a partner of WeirFoulds.

On October 22, Jeffrey Shinehoft, an associate with Howie, Sacks & Henry, was installed on the Brain Injury Association of York Region’s Board of Directors.

Shinehoft’s practice includes complex civil litigation with a focus on personal injury claims. He has had successful experience before both the Ontario Superior Court of Justice and the Canadian Pension Plan review Tribunal.

John A. Tory Fellowship established at University of Toronto’s Rotman School of Management

A fellowship in memory of John A. Tory has been established at the University of Toronto’s Rotman School of Management with an $180,000 commitment from Thomson Reuters. December 2011 | Briefly Speaking • En Bref

Nota BenE The annual fellowship will provide a $40,000 award to a Full-Time MBA student. The recipient will also have the opportunity to participate in a competitive 10-week paid internship in the Summer Associates Program at Thomson Reuters prior to their last year of study.

John A. Tory was a Toronto lawyer and businessman, a partner of the law firm Torys LLP, and well known advisor and director to some of Canada’s best known firms including The Thomson Corporation, Rogers Communications and the Royal Bank of Canada. He served as the President of Woodbridge, the Thomson family holding company, from 1973 to 1998 and served as Deputy Chairman of The Thomson Corporation from 1978 to 1997. He was a member of the board of Thomson Reuters at the time of his death earlier this year. Mr. Tory graduated from the University of Toronto with a law degree in 1952.

Judicial Appointments Supreme Court of Canada

On October 16, 2011, Prime Minister Stephen Harper announced the appointments of Mr. Justice Michael J. Moldaver and Madam Justice Andromache Karakatsanis, both of the Ontario Court of Appeal, to the Supreme Court of Canada. “Justice Moldaver and Justice Karakatsanis are both highly intelligent, greatly experienced and eminently qualified for their new roles as Supreme Court justices,” said the Prime Minister. “I have every confidence both justices will serve all Canadians faithfully and with distinction.”

Justice Moldaver and Justice Karakatsanis replace Madam Justice Louise Charron and Mr. Justice Ian Binnie, following their resignations from the Supreme Court earlier this year. Mr. Justice Moldaver is a recognized expert in criminal law. He was first appointed a trial judge to what is now known as the Ontario Superior Court of Justice in 1990 and to the Ontario Court of Appeal in 1995. Madam Justice Karakatsanis is widely recognized for her extensive experience in the Ontario public service. She was appointed to the Ontario Superior Court of Justice in 2002 and to the Ontario Court of Appeal in 2010.

Tax Court of Canada

On September 30, 2011 The Honourable Randall S. Bocock, a lawyer with Evans, Philp LLP in Hamilton, was appointed a judge of the Tax Court of Canada in Ottawa, to Briefly Speaking • En Bref | December 2011

replace Mr. Justice P. Archambault, who elected to become a supernumerary judge as of April 23, 2011.

Mr. Justice Bocock has been with the firm Evans, Philp LLP since September 1987. He has been the head of the firm’s business law department since 2000 and a member of the management committee since 2005. His main areas of practice were corporate commercial law, administrative law and estates and trust law. Mr. Justice Bocock was an active member of the Hamilton Law Association from 1989 to 1999. He has been involved with the County and District Law Presidents’ Association since 2001 and has been chair since 2008. He has been a member of the Canadian Association of University Solicitors since 1987. He was also executive member, vice-president and president of the McMaster University Alumni Association from 1991 to 2002. More recently, he was nominated as the director of the Lawyers Professional Indemnity Company and joined the Executive Council of the National Conference of Bar Presidents. He was the founding director and secretary of Haven of the Homeless Child, a charitable organization in Hamilton from 1999 to 2005, as well as member of the Hamilton Shelter Health Network since 2008.

Nota BenE Superior Court of Justice of Ontario Announced on October 11, 2011 were the appointments of The Hon. John P.L. McDermot and The Hon. John R. McCarthy to the Superior Court of Justice of Ontario.

The Honourable John P.L. McDermot, a judge of the Ontario Superior Court of Justice in Barrie, is appointed a judge of the Family Division of the Superior Court of Justice of Ontario to replace Mr. Justice P.Z. Magda, who elected to become a supernumerary judge as of September 16, 2011 and whose position was transferred to Barrie.

Mr. Justice McDermot was appointed to the Ontario Superior Court of Justice in October 2010. Prior to his appointment he was a partner with Craig, Boswell, McDermot in Barrie. His main areas of practice were family law, alternative dispute resolution, real estate, civil litigation, and wills and estates.

The Honourable John R. McCarthy, a lawyer with Will Barristers in Midland, is appointed a judge of the Superior Court of Justice of Ontario in Barrie to replace Mr. Justice J.P.L. McDermot, who has been transferred to the Family Division of the Superior Court of Justice. Mr. Justice McCarthy has been counsel with Will BarrisSmall

ters since 2006. He has been deputy judge the1 STG_OBA_hfpg_287c_04_11_Layout 1 4/14/11 12:39 PM of Page

Claims Court (Central East Region) since 2004. He was a partner at McCarthy, Bergeron, Rastin, Clifford from 2002 to 2006, and partner at Ferguson Barristers, McCarthy & Rastin from 1997 to 2002. He was an associate with Ferguson & Boeckle from 1993 to 1997. His main area of practice was civil litigation, with a focus on general insurance claims, disability claims, no-fault benefit disputes, and contract litigation. On September 30, 2011, The Honourable Brian P. O’Marra, Crown Attorney for the Attorney General of Ontario in Milton, was appointed a judge of the Ontario Superior Court of Justice in Brampton, to replace Mr. Justice E.R. Kruzick, who elected to become a supernumerary judge as of May 7, 2011.

Mr. Justice O’Marra has been the Crown Attorney in the Halton region since 1993. He was Assistant Crown Attorney in Brampton from 1982 to 1993 and Barrister and Solicitor with O’Marra & O’Marra from 1977 to 1982. His main area of practice was criminal law. Mr. Justice O’Marra was an instructor of the Advocacy course for Crown Counsels for several years and has been an instructor for the Bar Admission Course in Toronto since 2007.

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Fates Align

for New

Law School Frederick J.W. Bickford

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

n July 5, 2011, at a public ceremony in Thunder Bay attended by local MPPs, Lakehead University officials and other dignitaries, it was announced that the Ontario Government had approved funding to establish a Faculty of Law at Lakehead University.

This historic announcement came together as a result of a number of independently occurring stakeholder initiatives across the province and beyond.

Beginning in 2005 the Nishnawbe Aski Nation (NAN), the largest regionally based First Nations organization in Ontario, representing 49 First Nations Communities with a total population of over 30,000, approached Lakehead University about establishing a law school. With long-standing concerns about the lack of First Nations lawyers and limited access to justice available to First Nations community members, NAN, with encouragement from the Ontario Ministry of the Attorney General, was determined to pursue the establishment of a northern law school.

This coincided with the release of the Final Report of the Sole Practitioner and Small Firm Task Force by the Law Society of Upper Canada, which found a serious decline in the number of sole practitioners and small law firms in Ontario. Sole practitioners and small law firms have provided most of the legal services to the residents of under-serviced areas in Ontario, an area in desperate need of improved access to legal services.

Lakehead University

Lakehead University was incorporated in 1965, and since September 2006, has operated a satellite University campus in the City of Orillia. Lakehead has a total enrolment of approximately 8100 students and employs approximately 2250 faculty and staff, inclusive of the Orillia Campus. Lakehead University has historically played a leadership role in providing comprehensive, post-secondary education programs to Aboriginal students from Northern Ontario, elsewhere in Ontario, and indeed, across Canada. In the 2010/2011 academic year, 10.5% of the students enrolled were Aboriginal. Enrolments are in a range of academic programs at the Undergraduate and Graduate levels, including three and four-year Bachelor and Diploma programs, Masters programs and PhD programs, three quarters of them being residents of Northwestern Ontario. Lakehead University has nine (9) Faculties, which include Business Administration, Education, Engineering, Natural Resources Management, Graduate Studies, Medicine (Northern Ontario School of Medicine), Health and Behavioural Sciences, Science and Environmental Studies and Social Sciences and Humanities. Briefly Speaking â&#x20AC;˘ En Bref | December 2011

At approximately the same time, the County & District Law Presidentsâ&#x20AC;&#x2122; Association (CDLPA) also approached Lakehead University, requesting they consider establishing a law school.

In response to these separate, independent initiatives, Lakehead University prepared a comprehensive proposal and submitted it to the Law Society of Upper Canada. In its proposal for a Faculty of Law, Lakehead University advanced the following four (4) rationales for the proposal: 1.

2. 3. 4.

A Law School at Lakehead University would be established in collaboration with First Nations communities and people with the objective of addressing and improving access to justice by First Nations community members in Northern Ontario. Lakehead University was to reverse the trend of the declining number of sole practitioners and small law firm practices in Northern Ontario and elsewhere in the Province of Ontario.

A law school at Lakehead University would provide Northern Ontario students with improved opportunities to be admitted to and attend law school. The curriculum of a new law school at Lakehead University would focus on the legal service needs unique to the Northern Ontario population and its resourcebased economy.

In May of 2007 representatives of the University met with the LSUC to review proposed curriculum and admission requirements found in the University’s original law school proposal. Following that meeting, Lakehead University finalized its proposed course curriculum and admission requirements, requested feedback from the six deans of Ontario Law Schools and resubmitted its proposal to the LSUC. In approving the proposal at Convocation on April 24, 2008, the Law Society referred to it as being valuable, having sound and persuasive objectives and as a relevant and important initiative worthy of careful consideration.

Lakehead University’s School of Medicine (Northern Ontario School of Medicine), established in 2005, has been particularly successful in attracting Aboriginal students and residents in Northern Ontario. Its curriculum, learning methods, problem-solving learning and applications are well-suited for students learning rural and northern medical practice. Many graduates have remained in Northern Ontario to practise medicine, thereby relieving the severe shortage of physicians in Northern Ontario. the meantime, Lakehead has begun a dialogue with the Ontario Universities’ Application Centre regarding its entry to the Ontario Law School Application Service. Although contemplated within Lakehead’s proposal, final details on admissions criteria and categories will be determined in order that the application to the Lakehead University Faculty of Law JD program can be made by prospective students in the summer of 2012.

Work is also being done to identify the core collection of library holdings for the school. Establishing a comprehensive law library in both electronic and paper form will permit the Lakehead University Law School to foster and achieve the Law School’s teaching, learning and research objectives.

Many of the same philosophies apply to the vision for the Faculty of Law.

According to Dr. Rodney S. Hanley, provost and vice president academic at Lakehead University, since the announcement of funding approval, work has begun in a number of areas in order to meet the target of a first intake of law students in September 2013. A national search is now underway for a founding dean of the faculty, with an anticipated conclusion in early 2012. In 14

The First Nations organizations, the Law Society of Upper Canada, the County and District Law Presidents’ Association, the Government of Ontario, the Federation of Law Societies of Canada and many other stakeholders who have played a part are to be commended and praised for the efforts they have expended. There is unquestionably a challenging and promising future ahead for the new Faculty of Law at Lakehead University. Frederick Bickford is recognized across Northwestern Ontario as a leading counsel in labour, employment and administrative law. Fred served a sixyear term on OBA Council as an elected representative for Northwestern Ontario.

December 2011 | Briefly Speaking • En Bref

Le destin joue en la faveur d’une nouvelle faculté de droit Frederick J.W. Bickford

e 5 juillet 2011, au cours d’une cérémonie publique à Thunder Bay à laquelle assistaient les députés provinciaux locaux, les responsables de l’Université Lakehead et d’autres dignitaires, il a été annoncé que le gouvernement de l’Ontario avait approuvé le financement d’une faculté de droit à l’Université Lakehead. L’annonce historique a été rendue possible grâce à un certain nombre d’initiatives indépendantes de parties intéressées dans toute la province et au-delà.

Dès 2005, la Nation Nishnawbe Aski (NAN), l’organisation des Premières nations la plus importante d’un point de vue régional en Ontario, représentant 49 collectivités des Premières nations avec une population totale de plus de 30 000 personnes, a contacté l’Université Lakehead à propos de la création d’une faculté de droit. Avec des préoccupations de longue date concernant le manque d’avocats des Premières nations et l’accès limité à la justice pour les membres des collectivités des Premières nations, NAN, encouragée par le ministère du Procureur général de l’Ontario, était déterminée à poursuivre la création d’une faculté de droit du Nord.

Cela coïncidait avec la publication du rapport final du Groupe de travail sur les juristes autonomes et les petits cabinets, rédigé par le Barreau du Haut-Canada, qui signalait une chute importante du nombre de juristes autonomes et de petits cabinets en Ontario. Les juristes autonomes et les petits cabinets ont fourni la plupart des services juridiques aux résidents des régions souffrant d’un manque de services en

Briefly Speaking • En Bref | December 2011

Ontario, une région qui a désespérément besoin d’un accès amélioré aux services juridiques.

À peu près à la même période, l’Association des bâtonniers de comtés et districts a également approché l’Université Lakehead, demandant à ses responsables d’envisager la création d’une faculté de droit. En réponse à ces initiatives indépendantes distinctes, l’Université Lakehead a préparé une proposition complète et l’a soumise au Barreau du Haut-Canada. Dans cette proposition de création d’une faculté de droit, l’Université Lakehead a formulé les quatre (4) arguments suivants : 1.

Une faculté de droit à l’Université Lakehead serait établie en collaboration avec les collectivités et les membres des Premières nations avec pour objectif d’améliorer l’accès à la justice pour les membres des collectivités des Premières nations dans le nord de l’Ontario.

L’Université Lakehead avait pour objectif d’inverser la tendance du déclin des juristes autonomes et des petits cabinets dans le nord de l’Ontario et partout ailleurs dans la province. Une faculté de droit à l’Université Lakehead permettrait de fournir aux étudiants du nord de l’Ontario de meilleures possibilités d’admission et de participation au cursus de droit.

Le programme de la nouvelle faculté de droit à l’Université Lakehead se concentrerait sur les besoins en matière de services juridiques spécifiques à la population du nord de l’Ontario et à son économie fondée sur les ressources.

L’Université Lakehead L’Université Lakehead a été constituée en 1965, et depuis septembre 2006, a opéré un campus universitaire par satellite dans la ville d’Orillia. Lakehead a une inscription totale d’environ 8100 étudiants et emploie environ 2250 professeurs et personnels, compris le campus d’Orillia. L’Université Lakehead a historiquement joué un rôle de leadership dans la prestation compréhensive, des programmes d’éducation postsecondaire pour les étudiants autochtones du nord de l’Ontario, ailleurs en Ontario, et en effet, partout au Canada. Dans l’année académique 2010-2011, 10,5% des étudiants inscrits étaient des autochtones. Les inscriptions sont dans une gamme de programmes d’études au premier cycle et études supérieures, y compris des programmes de diplôme et licences de trois et quatre ans, des programmes de maîtrise et de doctorat, trois quarts d’entre eux étant des résidants du nord-ouest de l’Ontario. L’Université Lakehead a neuf (9) Facultés, qui comprennent : Gestion des entreprises, Éducation, Génie, Gestion des ressources naturelles, Études supérieures, Médecine (Northern Ontario School of Medicine), Sciences de la santé et du Comportement, Science et Études environnementales et les Sciences sociales et Sciences humaines.

En mai 2007, les représentants de l’Université ont rencontré le Barreau du Haut-Canada afin d’examiner le programme proposé et les conditions d’admission définies dans la proposition originale de l’Université pour la création de la faculté de droit.

À la suite de cette rencontre, l’Université Lakehead a finalisé le programme d’enseignement proposé et les conditions d’admission, a demandé des rétroactions auprès des six doyens des facultés de droit de l’Ontario, puis elle a soumis à nouveau sa proposition au Barreau du Haut-Canada. En approuvant la proposition au Conseil le 24 avril 2008, le Barreau l’a décrite comme une proposition valable, ayant des objectifs sensés et persuasifs et représentant une initiative pertinente et importante qui méritait d’être minutieusement étudiée.

L’école de médecine de l’Université Lakehead (école de médecine du nord de l’Ontario), établie en 2005, est parvenue à attirer les étudiants autochtones et les résidents du nord 16

de l’Ontario. Son programme, ses méthodes d’enseignement, son apprentissage et ses applications axés sur la résolution de problèmes sont adaptés aux étudiants qui apprennent la médecine rurale et spécifique à cette région. De nombreux diplômés sont restés dans le nord de l’Ontario pour pratiquer la médecine, réduisant ainsi la pénurie importante de médecins dans le nord de l’Ontario. Un grand nombre de ces principes s’appliquent à la vision de la faculté de droit.

D’après le Dr Rodney S. Hanley, vice-recteur à l’enseignement et à la recherche de l’Université Lakehead, depuis l’annonce de l’approbation du financement, le travail a commencé dans différents domaines afin d’atteindre l’objectif d’une première classe de droit en septembre 2013. L’Université recherche actuellement dans tout le pays un doyen fondateur de la faculté qui devrait être sélectionné au début de l’année 2012. Entre-temps, l’Université Lakehead a entamé un dialogue avec le Centre de demande d’admission aux universités de l’Ontario concernant son intégration au service d’admission aux facultés de droit de l’Ontario. Même si les conditions d’admission ont été étudiées dans la proposition de Lakehead, les derniers détails concernant les critères et les catégories d’admission seront définis afin que la demande d’admission au programme J.D. de la faculté de droit de l’Université Lakehead puisse être proposée aux étudiants au cours de l’été 2012.

Des recherches sont également en cours afin de déterminer la collection centrale des ressources documentaires pour la faculté. L’établissement d’une bibliothèque de droit complète en format papier et électronique permettra à la faculté de droit de l’Université Lakehead de promouvoir et d’atteindre les objectifs d’enseignement, d’apprentissage et de recherche de la faculté de droit. Les organisations des Premières nations, le Barreau du Haut-Canada, l’Association des bâtonniers de comtés et districts, le gouvernement de l’Ontario, la Fédération des ordres professionnels de juristes du Canada et de nombreuses autres parties intéressées qui ont participé à ce projet doivent être félicités et louangés pour les efforts fournis. Il va sans dire que l’avenir de la faculté de droit de l’Université Lakehead est prometteur et semé d’embûches. Frederick Bickford est reconnu dans l’ensemble du nord-ouest de l’Ontario comme un avocat de premier plan en matière de droit du travail et du droit administratif. Fred a effectué un mandat de six ans au Conseil de l’Association du Barreau de l’Ontario en tant que représentant élu pour le nord-ouest de l’Ontario.

December 2011 | Briefly Speaking • En Bref

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Briefly Speaking • En Bref | December 2011

SNAPSHOTS

2011 Award for Excellence in Civil Litigation As an association comprised of busy, successful, hardworking professionals, it is rare that we pause long enough to celebrate our accomplishments. On Tuesday, October 25th, 2011, honoured guests and members of the OBA’s Civil Litigation Section, gathered at the Royal York Hotel to recognize Harvey Strosberg, the 2011 recipient of the OBA’s Award for Excellence in Civil Litigation. Strosberg is a friend and colleague, widely recognized as one of Canada’s top advocates, and a gentleman who emulates the very best of the legal profession. Congratulations Harvey!

December 2011 | Briefly Speaking • En Bref

SNAPSHOTS

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

Ontario’s New Attorney General Just ten days since his appointment as Ontario’s new Attorney General, the Hon. John Gerretsen, MPP for Kingston and the Islands, kindly consented to be interviewed by Briefly so that the OBA’s members could learn a little more about him.

r. Gerretsen is a lawyer who began practice as a corporate counsel for a Toronto-based insurance company. He and his wife moved back to Kingston in the early 1970’s and he opened an office as a sole practitioner in 1971. His practice soon expanded to a broader general practice in which he offered services to criminal, family, real property and commercial clients. In 1980 he and Roy Conacher entered into partnership, and

Gerretsen and Conacher became one of Kingston’s bestknown law firms.

Like so many lawyers, Mr. Gerretsen decided to pursue a career in law in order to give back to his profession and his community. He also wanted to do more than practise law. He became active in the Frontenac Law Association and was elected the Association’s president in 1992. He also served as a Small Claims Court deputy judge from December 2011 | Briefly Speaking • En Bref

1993 to 1995 and was a regular lecturer on legal matters at St. Lawrence College.

Mr. Gerretsen’s political career began when he was elected as an Alderman for the City of Kingston, representing Portsmouth Ward, in 1972. He remained on City Council until 1980, serving as Deputy Mayor from 1976 to 1980. In 1980, he was elected Mayor of Kingston and was re-elected twice, making him the longest serving mayor in Kingston’s history. An interesting side note: like his father, Mr. Gerretsen’s son Mark entered politics as a Kingston Councillor in 2006 in the same ward his father represented, and was elected Mayor in November, 2010.

be priorities of the Ministry while he is the Attorney General. Having been a Small Claims Court deputy judge, and having had to deal with matters where one side was represented and the other was not, he is all too familiar with the challenges that such situations create for all involved in the justice system. He noted that he is, and always has been, a very practical individual and that practical solutions must be developed and implemented. Mr. Gerretsen

The Minister has also served as chair of the Kingston Police Services Board and was a founding member of Kingcole Homes, an organization devoted to providing housing to those in desperate need. He OBA President Paul Sweeny, The Honourable Attorney General John Gerresten, Former OBA President Lee Akazaki was also active in the Rotary Club of Kingston, was chair of pointed out that those responsible for the system must the South Eastern Emergency Health Services Committee look at it from the user’s perspective and find reasonable and has served as a Trustee for Queen’s University. While solutions that address their needs. many of Mr. Gerretsen’s friends and colleagues enjoyed extra-curricular activities like golf and other recreational John Gerretsen believes that too many take our justice endeavours, he spent his after-hours time attending meetsystem for granted. When compared to other places in ings focussed on community issues and, as he points out, the world, he believes our system is fair, works reasonderived as much or more satisfaction from doing so. ably well, offers good adjudication and, generally, good outcomes. He does recognize, however, that there is work Elected to the Provincial Legislature for the first time to be done and he is very keen to get on with addressing in 1995, Mr. Gerretsen was re-elected four times: in 1999, the remaining outstanding issues – as soon as his briefings 2003, 2007 and 2011. He has served as Ontario’s Minishave concluded, of course. ter of Municipal Affairs and Housing, also responsible for Seniors, Minister of the Environment and Minister of Consumer Services. Gerretsen entered politics to make a Steve Pengelly is executive director of the Ontario Bar Association. When he was a member of the Kingston Bar, he practised law with difference and is very proud of his involvement in several Mr. Gerretsen and his partner, Roy Conacher. Steve and Minister Gerinitiatives in which he was involved at the provincial level, retsen have been colleagues and friends for many years. especially his role in establishing the Greenbelt and providing municipal governments with more decision-making responsibility during his term as Minister of Municipal Affairs and Housing. Asked about what, in his view, was the most pressing issue facing the justice system at the moment, he responds “timely access to the system is critical.” He strongly believes that justice delayed is justice denied and that improving access and increasing efficiency will continue to

Briefly Speaking • En Bref | December 2011

Nouveau procureur général de l’Ontario À peine dix jours se sont écoulés depuis sa nomination à titre de nouveau procureur général de l’Ontario et l’honorable John Gerretsen, député provincial de la circonscription Kingston-et-les-Îles, a gracieusement consenti à être interviewé afin que les membres de l’ABO puissent en apprendre un peu plus à son sujet.

M. Gerretsen est un avocat qui a commencé sa pratique en tant qu’avocat de société pour une compagnie d’assurances basée à Toronto. Sa femme et lui ont déménagé à Kingston au début des années 1970 et il a ouvert son cabinet en 1971 en qualité de professionnel exerçant à titre individuel. Son cabinet n’a pas tardé à s’élargir pour inclure l’exercice non spécialisé de sa profession et dans le cadre duquel il offre des services à des clients en matière d’affaires criminelles, familiales, commerciales et immobilières. En 1980, Roy Conacher et lui ont conclu une association, et Gerretsen and Conacher est devenu l’un des cabinets les plus renommés à Kingston. Comme de nombreux autres avocats, M. Gerretsen a choisi de faire carrière en droit dans le but de contribuer à l’avancement de sa profession et de sa communauté. Il désirait également faire davantage que d’exercer le droit. Il est devenu membre actif de la Frontenac Law Association et a été élu président de l’Association en 1992. Il a également siégé à la Cour des petites créances en qualité de juge suppléant de 1993 à 1995 et était un conférencier régulier pour les questions de droit au St. Lawrence College.

La carrière politique de M. Gerretsen a commencé en 1972 lorsqu’il a été élu conseiller municipal pour la ville de Kingston, en représentant alors le quartier de Portsmouth. Il est resté au conseil municipal jusqu’en 1980, en occupant les fonctions de maire suppléant de 1976 à 1980. Élu maire de Kingston en 1980, il a été réélu deux fois, ce qui fait de lui le maire ayant connu le plus long mandat dans l’histoire de Kingston. Une note marginale digne d’intérêt : Mark, le fils de M. Gerretsen, est entré en politique comme son père en tant que conseiller pour la

ville de Kingston en 2006 dans le même quartier que son père représentait, et il a été élu maire en novembre 2010.

Le ministre a également assumé la présidence du conseil d’administration des services de police de Kingston et été un membre fondateur de Kingcole Homes, un organisme qui se consacre à fournir un logement à ceux qui en ont désespérément besoin. Auparavant président du comité des services de santé d’urgence du Sud-est, administrateur pour l’Université Queen’s, il a également été membre actif du Rotary Club de Kingston. Alors que de nombreux amis et collègues de M. Gerretsen s’adonnaient à des loisirs paraprofessionnels tels que le golf et à d’autres activités récréatives, il passait des heures après le travail à débattre des enjeux communautaires dans des réunions et, comme il le souligne, il en a ainsi retiré autant sinon plus de satisfaction.

Élu à l’assemblée législative provinciale pour la première fois en 1995, M. Gerretsen a été réélu quatre fois, soit en 1999, 2003, 2007 et 2011. Nommé ministre des Affaires municipales et du Logement de l’Ontario, il a également été ministre délégué aux Affaires des personnes âgées, ministre de l’Environnement de même que ministre des Services aux consommateurs. M. Gerretsen est entré en politique pour changer les choses et il est très fier de s’être impliqué dans plusieurs initiatives sur le plan provincial, surtout de son rôle dans la mise en œuvre de la ceinture de verdure et la prestation d’une plus grande responsabilité en matière de prise de décision aux gouvernements municipaux pendant son mandat en qualité de ministre des Affaires municipales et du Logement. December 2011 | Briefly Speaking • En Bref

tie était représentée alors que l’autre ne l’était pas, il connaît très bien les défis générés par de telles situations pour tous ceux qui sont impliqués dans le système juridique. Il a remarqué qu’il est, et a toujours été, une personne très pratique et que des solutions pratiques doivent être mises au point et mises en œuvre. M. Gerretsen a souligné que les personnes en charge du système doivent considérer celui-ci du point de vue de l’utilisateur et trouver des solutions raisonnables qui répondent aux besoins de l’utilisateur.

Lorsqu’on lui pose la question, à savoir ce qui est à son avis l’enjeu actuel le plus pressant pour le système juridique, il répond qu’il est essentiel d’avoir un accès opportun au système. Il croit fermement que le fait de retarder l’accès à la justice équivaut à en nier l’accès et que l’amélioration de l’accès et de l’efficacité continueront d’être des priorités pour le ministère tant qu’il sera procureur général. Parce qu’il a occupé les fonctions de juge suppléant à la Cour des petites créances et qu’il s’est penché sur des instances dont une par-

John Gerretsen croit qu’un nombre trop important de personnes prennent notre système juridique pour acquis. Lorsqu’on compare notre système à celui existant ailleurs dans le monde, il croit qu’il s’agit d’un système juste, qu’il fonctionne raisonnablement bien, qu’il permet l’établissement de bons règlements et l’obtention de bons résultats de manière générale. Il reconnaît cependant qu’il y a encore du travail à faire et il lui tarde beaucoup de traiter les problèmes qui ne sont pas encore réglés, dont il s’occupera dès que ses séances d’information seront terminés, bien sûr. Steve Pengelly est directeur administratif de l’Association du Barreau de l’Ontario. Lorsqu’il était membre du barreau de Kingston, il exerçait le droit avec M. Gerretsen et son associé, Roy Conacher. Steve et le ministre Gerretsen sont des collègues et des amis depuis de nombreuses années..

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the Lawyers of Laurel Broten MPP, Etobicoke – Lakeshore Minister of Education Minister Responsible for Women’s Issues As of October 20, 2011 Laurel Broten is the newly appointed Minister of Education for Ontario and will continue her role as Minister Responsible for Women’s Issues. First elected to the Legislative Assembly of Ontario in 2003 and subsequently reelected in 2007 and 2011, Broten has served in Cabinet as Minister of the Environment (2005-2007), Minister of Children and Youth Services (2009-2011) and Minister Responsible for Women’s Issues (2009-2011). She previously served as the Parliamentary Assistant to the Minister of Energy and Infrastructure (date), as Parliamentary Assistant to the Minister of Health and Long-Term Care (date) and Parliamentary Assistant to the Premier of Ontario (date). Prior to running for office, she built a successful career practising equity, commercial and human rights law. Broten is a graduate of the University of Western Ontario Faculty of Law, where she earned her law degree with distinction. From 1993-1994 she was a law clerk to Madam Justice Claire L’Heureux-Dubé at the Supreme Court of Canada. John Philpott, an associate at Brauti Thorning Zibarras LLP, was keen to volunteer in a riding and was evaluating the candidates when the OBA put him in touch with Broten. Eager to work with a candidate from the legal profession, he joined the campaign. “I had the opportunity canvas with Laurel multiple times, as she would be out knocking on doors each morning, afternoon and evening. The listening and issue framing skills she developed as a litigator were definitely an asset on the campaign. Most of all, I was impressed by Laurel’s ability to connect with people in the community. No matter their political persuasion, voters were consistently impressed by Laurel’s knowledge of the issues and her ability to effectively communicate her positions. I found her to be a person of integrity, always ready to engage on the issues without resorting to pandering.” Laurel, who is fluently bilingual, resides in Etobicoke with her husband and twin sons.

Christine Elliot MPP, Whitby – Oshawa Christine Elliot received her law degree from the University of Western Ontario and was called to the Bar of Ontario in 1980. Elliott is a founding member and partner of Flaherty Dow Elliott & McCarthy, where she practises real estate, corporate and estate law. In 2005, Elliott received the “Peter Perry Award”, Whitby’s outstanding citizen of the year award, in recognition of her exceptional contributions to the community. “Christine has a keen mind and a warm heart. She has a demonstrated ability to deconstruct complicated issues and effectively communicate areas in need of change,” says Doug Downey, of Lewis Downey Tornosky Lassaline & Timpano Professional Corporation. Downey currently serves as the elected treasurer of the OBA and is a strong supporter of Christine in all her endeavours. An advocate at Queen’s Park for financial, physical and mental health, Downey claims Elliott “has earned the respect of all members of the legislature.” Christine Elliott is a “Paul Harris Fellow”, having received Rotary International’s highest award in recognition of her pro bono legal work in establishing a charitable foundation for one of the Whitby Rotary Clubs. She was born in Oshawa and raised in Whitby, where she currently resides with husband the Honourable Jim Flaherty and their triplet sons, John, Galen and Quinn.

December 2011 | Briefly Speaking • En Bref

the Legislature Yasir Naqvi MPP, Ottawa – Centre Naqvi obtained his law degree from the University of Ottawa, and is called to the bars of Ontario and England and Wales. First elected to the Legislative Assembly of Ontario in October 2007, he served as the Parliamentary Assistant to the Minister of Community Safety and Correctional Services (Community Safety) until he was appointed the Parliamentary Assistant to the Minister of Revenue on October 3, 2008. In 2010 he was appointed the Parliamentary Assistant to the Minister of Education. He served as the Vice-Chair of the Standing Committee on the Legislative Assembly, and as a member of the Cabinet Committee of Legislation and Regulation. Naqvi’s upbringing was deeply rooted in the values of social justice and compassion; a first generation Canadian, his family arrived in Canada in 1988 after the Pakistani government imprisoned his father, Anwar, for leading a pro-democracy march. Naqvi has been a tireless advocate for public services and sustainable community growth. He introduced four Private Member’s Bills, the Safer Communities and Neighbourhoods Act, 2009, the Independent Public Health Act, 2009, the Escaping Domestic Violence Act, 2010 and the College and University Student Associations Act, 2011. Prior to being elected, Yasir was the Associate Director and International Trade Counsel at the Centre for Trade Policy and Law (CTPL). Before joining CTPL, he practised international trade law with Lang Michener LLP and Flavell Kubrick LLP.

Chris Bentley MPP, London – West Minister of Energy “Energy”. There is no better word to describe Chris Bentley. He is one of the hardest working people in the profession, and is always on the go, says OBA member Mitch Frazer. At Western Law School, Bentley was known as a fantastic lecturer, an accessible mentor and an advocate for student interests. He taught criminal law and evidence, he helped establish the Law School Careers Office and served as its first director, and somehow managed to always make time to participate in the annual Law School talent show. He twice received awards voted on by students for his teaching excellence. Outside of the law school, Bentley ran a vibrant legal practice focusing on criminal and labour law for almost 25 years. He is active in the London community, serving as the first chairperson of Neighbourhood Legal Services London and Middlesex, a legal clinic established in London to assist low-income clients. He is also a fitness enthusiast, having run a number of charity races as well as three Boston marathons. Most importantly, he is a supportive husband of Wendy, and the proud father of two daughters. Bentley attended the University of Western Ontario and received his law degree from the University of Toronto Law School in 1979. He was called to the Ontario bar in 1981 and later obtained a masters-level degree from Cambridge University in England. In 2003, Bentley decided to focus his “energy” on politics and was elected to the Ontario legislature. He was subsequently re-elected in 2007 and 2011. Prior to his toriginal Affairs, Minister of Training, Colleges and Universities and Minister of Labour. Chris Bentley has become known as champion of the public interest, whether it is through his work with university students, his community and charitable activity and now through elected office. All those who know him are appreciative of all he has done for the people of Ontario. Briefly Speaking • En Bref | December 2011

Equality in the Profession– Where Do We Go from Here? Mark Berlin

ext year marks the 20th anniversary of the establishment of the OBA Equality Committee. It’s timely to ask whether there continues to be a need for such a group.

The Equality Committee (recently renamed from “Equal Opportunity Committee”) was set up with the mandate to “examine and make recommendations regarding the impact of race, ethnicity, religion or disability on OBA’s by-laws, electoral processes, policies, submissions, and activities. Further responsibilities include identifying the incidence of inequality of opportunity in the legal profession in Ontario based on race, ethnicity, religion, sexual orientation, or disability and recommend methods to eliminate said inequalities. Finally, the committee was charged to examine and make recommendations on the ability of the legal institutions in Ontario to serve the needs of historically disadvantaged equity seeking groups, such as those identified by race, ethnicity, religion, disability or sexual orientation.”

Ask yourselves: does the OBA membership reflect all lawyers in Ontario? When you attend OBA events and look around the room, are all equality seeking groups represented in numbers that match their numbers within the profession? When you look at OBA Executives and the Board of Directors, does it look like the diversity of the community it represents? When you look at the major law firms, do the partners somehow all look the same? I think the answers to these questions are pretty clear.

This is not to say that there is overt discrimination in the legal profession in Ontario. That is so 1960-70s. On the contrary, there have been recent and real efforts to look at our association and the profession at large and ask difficult questions. So while our colleagues at the CBA produced an equity and diversity guide and resource manual a couple of years ago, have there been vast improvements for lawyers from the equality and diversity community? Hmmm. I think not. December 2011 | Briefly Speaking • En Bref

We need to constantly ask ourselves a number of other questions. What are the systemic and unconscious barriers that prevent a full participatory membership from existing and being reflected in the upper echelons of decision making in the profession? How can we reach out and make colleagues feel valued and welcomed within our organization? What barriers exist for hiring, retention or promotion with the workplace? What accessibility barriers exist within our legal institutions? What particular and unique obstacles exist at law school, bar admissionss and articling? Are legislative proposals sensitive and reflective of the needs of a diverse population?

What are the systemic and unconscious barriers that prevent a full participatory membership from existing and being reflected in the upper echelons of decision making in the profession? The OBA Equality Committee vigilantly addresses these and other issues. We have established a disability subcommittee to conduct a survey of existing reports to confirm what has been done by whom and what gaps still exist. We will soon be canvassing all members to learn what our members with disabilities have experienced and whether adequate accommodation was made in particular circumstances. We have made submissions through the OBA to the CBA Committee on fees in regards to disparate impact on our constituency. We will seek greater involvement in the OBA court accessibility sub-committee. We have a diversity program at the OBA, whereby equity seeking legal associations can affiliate with the OBA, which provides administrative support for them. Over half a dozen groups, such as the Canadian Association of Black Lawyers, the Indigenous Bar Association and the Hispanic Lawyersâ&#x20AC;&#x2122; Association, are taking advantage of this program. These are just a few of the initiatives of the OBA Equality Committee.

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So, again, look at the questions above. Until we can honestly answer them to benefit of our members and no longer need to ask such questions, the Equality Committee will continue to contribute meaningfully to the resolution of equality on behalf of all lawyers and law students in Ontario. Mark Berlin is Corporate Counsel and Director General, Rule of Law and Goverance of the Institute of Goverance in Ottawa.

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

Visit www.cba.org/mayakoba2012 to book and register. 27

Égalité sur le plan professionnel– On va ou d’ici? Mark Berlin

’année prochaine marquera le 20e anniversaire de la fondation du comité en matière d’égalité de l’ABO. Il est temps de se demander s’il y a lieu de maintenir ce comité.

Le comité en matière d’égalité de l’ABO (récemment renommé le « comité de l’égalité des chances ») a été mis sur pied afin de « passer en revue l’influence de la race, de l’ethnicité, de la religion ou de l’invalidité sur les règlements, les processus électoraux, les politiques, les mémoires et les activités de l’ABO et d’émettre des recommandations. Ses autres responsabilités consistent à déterminer l’incidence de l’inégalité sur l’accès à la profession juridique en Ontario en fonction de la race, de l’ethnicité, de la religion, de l’orientation sexuelle ou de l’invalidité et à recommander des méthodes pour éliminer lesdites inégalités. En dernier lieu, le comité a reçu le mandat d’étudier la capacité des institutions juridiques ontariennes à satisfaire les besoins des groupes favorisant l’égalité et traditionnellement désavantagés, groupes tels que ceux déterminés en se basant sur la race, l’ethnicité, la religion, l’invalidité ou l’orientation sexuelle. Le comité est également chargé d’émettre des recommandations. Posez-vous la question : l’adhésion à l’ABO représente-elle tous les avocats de l’Ontario? Lorsque vous participez aux événements de l’ABO et jetez un coup d’œil dans la salle, constatez-vous que le nombre de participants provenant de tous les groupes favorisant l’égalité correspond à leur présence au sein de la profession? La diversité de la communauté estelle bien représentée au sein de la direction et du conseil d’administration de l’ABO? Les associés d’importants cabinets d’avocats se ressemblent-ils tous? Je crois que les réponses à ces questions sont très claires. Cela dit, la profession juridique en Ontario n’est cependant pas marquée par une discrimination flagrante. Cela ressemble tant au contexte des années 1960 et 1970. Tout au contraire, des efforts réels visant à examiner notre association et la profession dans l’ensemble ont récemment été consentis et des questions complexes ont été posées. Il y a quelques années, nos collègues de l’ABO ont rédigé un guide en matière d’égalité et de diversité et préparé un manuel de ressources; l’initiative a-t-elle été suivie par d’importantes améliorations pour les avocats sur le plan de l’égalité et de la diversité communautaire? Hum. Je ne crois pas. 28

Nous devons constamment nous poser un certain nombre d’autres questions. Quelles sont les barrières inconscientes et systémiques qui empêchent l’entière adhésion d’une communauté diversifiée à la profession juridique et la représentation de cette dernière dans la haute sphère décisionnelle? Comment pouvons-nous rayonner et faire en sorte que les collègues se sentent valorisés et bienvenus au sein de notre organisme? Quelles sont les barrières qui constituent un frein à l’embauche, au maintien en poste ou à la promotion dans le lieu de travail? Quelles barrières à l’accès sont présentes au sein de nos institutions juridiques? Quels obstacles uniques et particuliers retrouve-t-on à la faculté de droit et quels autres ont trait à la préparation au barreau et au stage d’avocat? Les propositions législatives reflètent-elles les besoins d’une population diversifiée et sont-elles adaptées? Le comité en matière d’égalité de l’ABO aborde attentivement ces questions et d’autres encore. Nous avons mis sur pied un sous-comité en matière d’invalidité, responsable de la réalisation d’un sondage concernant l’état actuel de la situation afin de confirmer le progrès accompli, quels en sont les auteurs et quelles sont les lacunes qui restent à combler. Nous solliciterons bientôt tous les membres afin d’apprendre ce que nos membres souffrant d’invalidité ont vécu et si des dispositions convenables ont été prises dans des circonstances particulières. Nous avons présenté au comité de l’ABC par l’intermédiaire de l’ABO des mémoires sur les honoraires dans le but de contrer leur incidence disparate sur notre structure de base. Nous solliciterons la participation élargie au souscomité en matière d’accès au tribunal de l’ABO. L’ABO dispose d’un programme sur la diversité, soit un programme au moyen duquel les groupes favorisant l’égalité juridique peuvent s’associer à l’ABO qui leur fournit le soutien administratif. Plus d’une demi-douzaine d’organismes dont l’Association canadienne des avocats noirs, l’Association du Barreau Autochtone du Canada et l’Hispanic Lawyers’ Association profitent de ce programme. Ce ne sont là que quelques-unes des initiatives du comité en matière d’égalité de l’ABO. Examinez donc de nouveau les questions ci-dessus. Tant que nous n’aurons pas honnêtement répondu à ces questions pour en faire profiter nos membres et que le besoin de poser lesdites questions se fera sentir, le comité en matière d’égalité continuera d’apporter une contribution significative à la résolution de l’égalité au nom de tous les avocats et étudiants en droit de l’Ontario. December 2011 | Briefly Speaking • En Bref

The “Heart and Soul” of It Dean Lorne Sossin, Osgoode Hall Law School J. Andrew Sprague

Earlier this year, Briefly Speaking had an opportunity to sit down with Lorne Sossin, who was appointed in July 2010 as the Dean of Osgoode Hall Law School. Sossin was happy to share his personal passions for the law, as well as his affections for Osgoode, one of Canada’s largest law schools.

Background Sossin, a graduate of Osgoode (LL.B.), the School of Law at Columbia University (LL.M. and J.S.D.), and the University of Toronto (Ph.D.), has taught, sometimes at the same time, at both Osgoode and U of T since the mid-1990s. Sossin was a law clerk to former Chief Justice Antonio Lamer of the Supreme Court of Canada, and is a former litigation lawyer with the firm of Borden & Elliot (now Borden Ladner Gervais LLP). His areas of interest include human rights law, legal process, the legal profession, poverty law, and public law.

Staying Connected

A typical day for Sossin sees him experiencing a slice of all the different pieces of the law school community. In addition to its J.D. and graduate programs, Osgoode also has a “very vibrant” professional development centre with part-time programs, certificate programs, continuing legal education programs, continuing professional development programs, and executive education.

With a wide smile, Sossin remarks that working within the self-described “fun, convivial and collegial” atmosphere at Osgoode is very enjoyable. As Dean, one of his goals is to be in touch and to stay in tune with what’s happening at Osgoode. Sossin regularly uses Twitter®, with

the handle ‘Deansossin’, as he considers it to be a “lively” way to keep in touch and a way to stay updated on “what’s alive in the community”. Another way in which he stays connected with the Osgoode community is through his blog, which can be found at http://deansblog.osgoode. yorku.ca.

Curricular Ambitions

In a tone of voice that a proud father might use, Sossin asserts that “Osgoode’s curriculum is the richest and most diverse in the country with many distinctive elements.” When asked to reflect upon his own experiences as a law student at Osgoode, Sossin notes that the amount of learning that happens outside of the classroom is “much more integral” and of a “much greater quality” than when he was a student in the early 1990s. Osgoode is undertaking an “ambitious” new upper year curriculum that will see each of its students have an “experiential learning opportunity”, whether in a clinic, intensive course or a hands-on simulation. According to Sossin, Osgoode is the first law school in Canada to make this a core required element of its curriculum. Sossin is mindful that his school is asking more and more of its students. He notes, with evident concern, that “there’s always a danger of making it just too intense and December 2011 | Briefly Speaking • En Bref

risking burn out.” Sossin believes that there is a “real value to squeezing as much juice out of the [law school] experience as you can”, but he and his faculty also fully appreciate the need to balance school with enough time for rest, friends, and “less intense pursuits.”

40 Years for Parkdale Community Legal Services

During his law studies, Sossin was involved with CLASP (Community and Legal Aid Services Program) at Osgoode. In 1971, Osgoode was the first law school in Canada to establish a student-staffed community legal services clinic. This year, Parkdale Community Legal Services is celebrating 40 years of service to the Parkdale and Swansea communities in Toronto, a milestone that both Sossin and his school are very proud of.

A New Building, Embracing Technology, and Connecting with Younger Alumni

This past summer, the Osgoode community moved back into its main building located at York University. This building has just undergone a $50 million renovation that clearly excites Sossin. Classrooms are now fully accessible and wired with Internet connectivity. As well, every lecture can now be podcasted, and every seminar can include participants from around the world through video conferencing facilities.

It is apparent that Sossin cherishes his connections with older alumni, and that he would love to see younger alumni more engaged. Sossin believes that connecting with graduates early in their career can create “longterm positive relationships.” He notes, with enthusiasm, that Osgoode is always on the look-out for opportunities to join with alumni in enriching the law school and the community. For Sossin, the most compelling feature of Osgoode is that “there is a clear heart and soul of it, and that heart and soul is around this idea of taking a commitment to law as an idea and putting it into action.” His commitment to law, his law school and his constituents is highly evident, as is Osgoode’s efforts to put its commitment to law into action.

J. Andrew Sprague is a lawyer with Miller Thomson LLP.

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INSTITUTE 2012

Designed for Your Success Institute 2012 | February 9–11 Andrew Pinto “Learn . Thrive . Succeed .” It’s these core values that drive the 2012 OBA Institute. Learning, like laughter, is contagious. There is something distinctive about legal education in a group setting; other people ask the questions you are afraid to ask or that you may not even know to ask; the interaction among speakers and audience provides for new insights into unsettled areas of law. What better place for this than Institute, the largest annual gathering of lawyers in Canada? Last year, Institute’s 25 quality programs attracted more than 1900 registrants to the Fairmont Royal York Hotel in Toronto. This year, with 27 new programs covering 22 different practice areas at an excellent new venue, the Westin Harbour Castle Conference Centre, Institute will be better than ever.

But Institute is so much more than a locale where legal learning happens—it has evolved from a venue for legal seminars to a legal conference and the profession’s marquee annual event. That’s where the “thrive” comes in. To thrive is to be significantly more at the end than the start; to be excited at the journey, not just at the destination. Institute promises to help you thrive both at and after Institute in three ways. we’ve listened to your feedback and have increased 1 First, the opportunities to network with your colleagues.

Whether it’s an old law school chum, a colleague from years gone by, or the fierce litigator on the opposite side of your file, chances are that a face-to-face discussion in the registration hall, at the coffee-station or at the lunch table will lead to a conversation or insight that will make the trip to Institute well worth it.

there’s our keynote speaker, author and hu2 Secondly, mourist Terry Fallis, whose wry observations about

working life, politics, technology and the frustration of everyday living belie his professional background as an ace communicator and public relations specialist.

building on the networking and social theme is the 3 Third, welcome reception on Thursday, February 9, 2012 featur-

ing premier entertainment as well as the Sole, Small Firm and General Practice Breakfast, the Official Languages Committee Bilingual Lunch, the YLD Lunch, and Sexual Orientation and Gender Identity Committee Lunch. You have told us you come to Institute expecting not only professional growth but also fond memories of personal connections and stimulating conversations shared with colleagues.

Institute is designed to help you succeed in meeting your professional CPD obligations. Get a head start on your mandatory 2012 CPD obligation - Institute provides you with one-stop shopping where you can meet both the substantive and professionalism CPD requirements as well as New Member hours for those starting out in the profession for 2012. Considerable effort goes into ensuring Law Society professionalism accreditation for Institute programs, so take advantage of it by signing up for one, two or more programs. Now in its 37th year, Institute is all grown up. We wanted its visual representation to reflect progressive yet mature values of innovation, connectivity and engagement. Perhaps it was fitting, then, that as organizers we had a lively debate about the gender of our Institute model. Some are convinced it is male, others sure it is female, yet others decry the ubiquity of gender itself. Ultimately, however, we decided that the visual identity of Institute had got us talking, thinking, learning and having fun. That’s what we hope for Institute 2012 and why we strongly encourage you to register as soon as possible for this premier event.

Andrew Pinto is co-chair of the 2012 Institute, alongside Janice Vauthier. Andrew is a partner with Pinto Wray James LLP in Toronto, where he practises primarily in the areas of employment, labour, administrative, civil litigation and human rights

December 2011 | Briefly Speaking • En Bref

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Probing the X Factors in Multi-party Mediations Michael G. Cochrane, LL.B

Multi-party mediations can call for an extra level of listening by the mediator as well as other participants. One of the many things I listen for are X Factors – motivators or de-motivators that block consensus. These X Factors can be simple but are not always obvious. It is sometimes only after long discussions involving genuine listening that suddenly out floats, like an epiphany, the X factor that has held that individual back from supporting an agreement. Whether a participant or a mediator, consider the following X Factors:

Positions: “We must have X…”

It is not uncommon to begin a mediation/consensus building process with firm statements by one or more participants about their “bottom line” positions. They may be unable to describe their needs. Their script was written for them long before they sat down to talk. If they do not obtain or protect the things on their list, then they will be judged to have been a failure. A good process will allow this positional approach to be probed. “What is needed?” as opposed to “What is demanded?”

2 34

History: “We have always had X…”

Not unlike the “Positional” X factor, this one at least contains a clue to its origins. “Where did X come from? Why was it put in place to begin with? Are those assumptions still applicable? Probing the assumptions often reveals that history need not repeat itself.

Ideology: “We believe in X…”

With this X factor the motivation of the individual, or the group for whom he or she speaks, is linked to a belief. To be seen to abandon the belief could be interpreted as abandoning a core value. When was the last time you saw that happen? Gentle probing of the values beneath the belief will be needed.

Agenda: “If we get X, then we may get Y…”

In this situation, the party’s thinking on a particular issue is linked to more than what is immediately on the table. Their goal is tied to their previous achievements or to what is considered to be next on their list of needs. Probe the linkage. Is it necessary?

Definitions: “We do not define X like you do…”

The language of the mediation/consensus building must be common. Key words and phrases should be explored. Nothing can be taken for granted. An “apology” can mean three different things to a wrongfully dismissed employee, an employer and an insurance company worried about liability. I recall a negotiation that turned on the fact that a key participant misunderstood the meaning of the word “notwithstanding”. A simple clarification was given and matters proceeded. December 2011 | Briefly Speaking • En Bref

Promises to Keep: “We promised X to our followers/partners.”

In this situation, the motivation of the party is tied to commitments that may have been made to constituents or to third parties not involved in the negotiations. As in the case of similar X factors concerning agenda, ideology and positions, probing of the underlying thinking is needed to expose the need opposed to the demand. Why were those promises made?

Lack of Will: “We do not care about X…”

It can be very difficult to engage a person in a consensus building effort if they are not motivated to be there. Why do they feel that the potential change does not concern them? Benefit them? Probing should reveal their stake in the outcome of the process.

Losing is Winning: “If we do not achieve X, then it proves that we have been wronged.”

Of all the X factors, this one can be the most difficult to comprehend and redress. The representatives of this interest may arrive at the table with a long list of grievances and demands designed to illustrate how terribly they have been treated. If their list of demands is accepted, then other participants have acknowledged that they were indeed wronged. If the demands are rejected, then it proves that their struggle is genuine and must continue. Agenda and ideology may also be wrapped up in this factor.

Loving Eyes Can Never See: “I love X …plain and simple.”

As the old song goes, “Loving eyes can never see.” What they never see is the inherent flaw in the relationship. A party’s warts or other flaws are not invisible, on the contrary, they are held up to praise as defining characteristics. Why was that love kindled in the first place? Probing may reveal a co-dependency that can be remedied without losing the relationship. Sometimes simply identifying the obstacle and naming it can go a long way to dealing with the motivations that lay beneath the surface of every consensus building effort. When a mediator or a participant in a multi-party mediation confronts a dead lock, consider reviewing each party’s motivation. Is an X Factor at work? Michael G. Cochrane Dispute Resolution Group Ricketts, Harris LLP mcochrane@rickettsharris.com www.michaelcochrane.ca

This article is a brief summary of part of the presentation by Mr. Cochrane at the OBA-ADR Panel Discussion, Mediating Multi-Party Disputes, held September 30, 2010.

Absence of Need/Urgency: “We are going to achieve X anyway…”

This factor looks like number 6 but is very different from the “lack of will” X factor. In this case the party perceives, perhaps mistakenly, that their own power is sufficient to achieve their goals without needing to negotiate with anyone. Briefly Speaking • En Bref | December 2011

In the Dean’s Chair Filippo Conte interviews Sébastien Grammond about his experience as law dean of the University of Ottawa’s Civil Law program.

Filippo Conte What are some of the perks that come with being dean? One definite perk and moreover privilege is being able to meet great people. Special speakers are often invited to speak to the students and faculty, and as dean I am pleased to be able to meet and speak to these people while representing the Civil Law Faculty.

What kind of student were you?

I was the kind of student who wanted to always do something different. From the very beginning I was interested in research activities and projects. So much so that the first summer after my first year, I became a research assistant while still participating in a lot of student activities at the law faculties.

Côté stands out in my mind. A very sensible professor, Côté encouraged students to think about how legal reasoning works and how one infuses judgements in what appears to be dry reasoning.

What encouraged you to begin teaching?

I was always interested in teaching. From the beginning of my practice, I worked as a part-time sectional lecturer at McGill while practising full-time. So it was really about finding the right balance between practising and teaching. I eventually left full-time practice to work on a doctorate – which brought me to the next level in terms of research and thinking about the law. When I finished my doctorate I was hired at U of O.

What was your favourite class in law school?

Where does your interest in aboriginal law come from?

If I had to choose one out of the few contenders for favourite class, statutory interpretation with Pierre-Andre

In my first year, one of my professors suggested I should look into indigenous law for a directed research project. December 2011 | Briefly Speaking • En Bref

This was a fruitful and insightful suggestion that challenged me intellectually and allowed me to look into the injustice done to indigenous people and how I could do my part to assist them by explaining how the law justified their disposition and how the law today can be used to remedy it. This research lead to me working on aboriginal files at Fraser Milner Casgrain, teaching on aboriginal law at McGill, inspired the subject of my doctoral thesis and lead to teaching classes on aboriginal law at the U of O and to teaching special courses for law students right in Cree communities.

What are two projects you are most excited about being part of?

I am working on a project as a professor with a colleague in the anthropology department. We are looking at Métis trial transcripts to ascertain how Métis see their identity. Our hope is to let judges and practitioners that go to court on Métis cases know how the Métis see their identity and so assist in their litigation by seeing how the Métis see themselves.

In recent years, the faculty began a minor in law project as well as the Programme de droit canadien that I am very proud of. The minor in law is available in both French and English and in 10 courses that can be combined with any major or specialised program in criminal science or criminology or journalism. This program allows students to focus on law as a social phenomenon, but at the same time gives students from other disciplines basic training in legal reasoning and concepts. The Programme de droit canadien combines the civil and common law programs at the same time; allowing students to complete both diplomas in three years.

What is next for you?

I am working on a translation and update of a book on aboriginal law published in French in 2003 called Aménager la coexistence : les peuples autochtones et le droit canadien (English title not yet available). I also recently published a textbook with two colleagues called Quebec Contract Law. My hope is that both books can be used by students, judges, practitioners and those in other disciplines to have a better understanding about distinctiveness of aboriginal issues.

EnBref

Brieflyspeaking

Take a moment and Win! a Blackberry® 32 GB Playbook Win a Blackberry® 32 GB Playbook by taking a moment to answer a few questions about what you, our valued reader, would like to see in Briefly Speaking. As the official magazine of the Ontario Bar Association, we are committed to serving members by publishing informative, relevant content tailored specifically for the practising lawyer in Ontario.

Briefly Speaking is your magazine. Your answers will be aggregated with those of other respondents and will be kept in strict confidence.

Filippo Conte is the bilingual public relations lead for the Ontario Bar Association.

www.oba.org/brieflyspeaking Briefly Speaking • En Bref | December 2011

Dans le fauteuil du doyen Filippo Conte interroge Sébastien Grammond à propos de son expérience en tant que doyen de la Section de droit civil de l’Université d’Ottawa.

Filippo Conte Quels sont certains des avantages de la position de doyen? L’un des avantages et surtout un privilège est la possibilité de rencontrer des personnes très intéressantes. Des intervenants spéciaux sont souvent invités à parler aux étudiants et au corps professoral, et en tant que doyen, j’ai la chance de pouvoir rencontrer ces personnes et leur parler tout en représentant la Section de droit civil.

Quel genre d’étudiant étiez-vous?

J’étais le genre d’étudiant qui voulait toujours faire quelque chose de différent. Dès le début, je m’intéressais aux activités et aux projets de recherche. À tel point que le premier été après ma première année, je suis devenu adjoint à la recherche tout en participant à de nombreuses activités étudiantes à la faculté de droit.

Quel était votre cours préféré à la faculté dedroit?

Si je devais choisir un cours parmi mes préférées, l’interprétation des lois avec Pierre-André Côté me vient tout de suite à l’esprit. Un professeur très sensé, M. Côté encourageait les étudiants à penser au fonctionnement du raisonnement juridique et à la façon dont une personne instille des jugements dans ce qui semble être un raisonnement impartial.

Qu’est-ce qui vous a poussé à devenir enseignant?

L’enseignement m’a toujours intéressé. Dès le début de ma carrière, je travaillais comme chargé de cours à temps partiel à McGill tout en pratiquant le droit à plein temps. L’objectif était donc de trouver le bon équilibre entre la pratique et l’enseignement. À un moment donné, j’ai cessé la pratique du droit à plein temps pour préparer un doctorat, ce qui m’a amené au niveau supérieur en termes de recherches et de pensée de la loi. Lorsque j’ai terminé mon doctorat, j’ai été engagé par l’Université d’Ottawa.

D’où vient votre intérêt pour le droit des autochtones?

Au cours de ma première année, l’un de mes professeurs m’a suggéré de faire des recherches en matière de droit des autochtones pour un projet de recherche dirigé. C’était un suggestion efficace et perspicace qui m’a mis au défi, d’un point de vue intellectuel, et qui m’a permis d’étudier les injustices faites aux peuples autochtones et la façon dont je pouvais les aider en expliquant comment la loi avait justifié leur aliénation et la façon dont la loi aujourd’hui peut être utilisée 38

pour y remédier. Ces recherches m’ont amené à travailler sur des dossiers concernant des autochtones chez Fraser Milner Casgrain, à enseigner le droit autochtone à McGill, elles ont inspiré le sujet de ma thèse de doctorat et m’ont amené à donner des cours sur la loi autochtone à l’Université d’Ottawa et à donner des cours particuliers pour les étudiants des communautés Cries.

Quels sont les deux projets auxquels vous appréciez le plus de participer?

Je travaille sur un projet en tant que professeur avec un collègue du département d’anthropologie. Nous étudions les transcriptions de procès de personnes métis afin de déterminer la façon dont les Métis considèrent leur identité. Nous espérons pouvoir informer les juges et les intervenants quant à la façon dont les Métis considèrent leur identité et ainsi les aider dans leurs procédures en découvrant comment les Métis se perçoivent.

Ces dernières années, la faculté a commencé un projet de mineure en droit ainsi que le Programme de droit canadien dont je suis très fier. La mineure en droit est disponible en français et en anglais et elle est composée de dix cours qui peuvent être combinés avec n’importe quelle majeure ou programme spécialisé en sciences criminelles, en criminologie ou en journalisme. Ce programme permet aux étudiants de se concentrer sur le droit en tant que phénomène social, mais il permet également de donner aux étudiants issus d’autres disciplines une formation de base en concepts et en raisonnement juridiques. Le Programme de droit canadien rassemble les programmes de droit civil et commun; permettant aux étudiants d’obtenir les deux diplômes en trois ans.

Qu’est-ce que l’avenir vous réserve?

Je travaille sur la traduction et la mise à jour d’un livre sur le droit autochtone publié en français en 2003 et intitulé Aménager la coexistence : les peuples autochtones et le droit canadien. J’ai également récemment publié un ouvrage avec deux collègues intitulé Quebec Contract Law. J’espère que les deux livres pourront être utilisés par les étudiants, les juges, les intervenants et les personnes pratiquant une autre discipline afin de mieux comprendre le caractère distinctif des questions concernant la population autochtone. Filippo Conte est le responsable bilingue des affaires publiques de l’Association du Barreau de l’Ontario.

December 2011 | Briefly Speaking • En Bref

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Just For Laughs

For centuries people have wondered about the mystery of how the stones at Stonehenge England arrived there.

The Druid Orthodox Temple v. Jock the Mover Marcel Strigberger

here are several dozen huge stones arranged in a circular pattern with some rocks resting horizontally high atop the other rocks, each piece weighing several tons. Experts claim that the stones originate from Wales. I recently visited Stonehenge. I was no further enlightened.

It seems however that some light may now be shed on the mystery as construction workers digging near the courthouse in nearby Salisbury have come across some court records which reveal a legal action that took place

centuries ago. The records will show that times have not changed.

The following narrative is taken from the judgment of the trial judge:

Flintstone J.: â&#x20AC;&#x153;The plaintiff, The Druid Orthodox Temple, brings this action against the defendant Jock the Mover. It seems that the plaintiff hired the mover to move its temple from Wales a couple of hundred miles south and to reset it a site December 2011 | Briefly Speaking â&#x20AC;˘ En Bref

Just For Laughs near Salisbury. The plaintiff claims that many of the rocks were not delivered, some were returned damaged and the temple was not properly set up.

A month or so before the move a sales representative of the mover, one Ehrlick, visited the Druids congregation to price the move. He dealt with one Bork, the Temple’s ritual slaughterer and accountant. The two struck a deal to move the entire temple rock by rock and set it up again at Stonehenge. The move was to start the following week and take three days. Ehrlick’s testimony however was that he specifically advised Bork that the mover was also moving a second nearby temple shortly and that it would move the two simultaneously “as there’s no sense travelling all that distance for just one temple”.

Unfortunately the move was plagued by misfortune from the word go.

On November 26 the Druids waited patiently for Jock’s team of movers to arrive. To their chagrin what came were three drunken men in a broken flatbed wagon. They circled the temple once and left, indicating they would be back after lunch. The move was not started until the following March and not completed until the following July.

While the movers were unloading an altercation erupted. The moving company’s man in charge, one Leon, requested payment before completion of the set up, indicating that terms of payment were C.O.D. Bork refused to pay at that point and the movers left, retaining with them a number of rocks as security, pursuant to the Moving and Warehousing of Places of Worship Act. The Druids claim that many rocks are still missing or damaged and they sue for 100,000 Crowns.

The mover argues that it is not at fault, saying that on route its vehicles were ambushed by a bunch of outlaws while passing through Sherwood Forest. The bandits made off with the driver’s purse, his wagon and about twenty-five eight-ton rocks. They also snatched his pet beagle, Pokey.

The Sheriff of Nottingham eventually recovered a couple of the rocks from the homes of the poor. The Sheriff charged them with possession of stolen property. The accused apparently alleged that they

Briefly Speaking • En Bref | December 2011

had no clue the rocks were stolen and that they picked them up at a local flea market. The Druids also claim that the temple is now ruined. Bork points to a sketch of the rocks arranged in a circle and says, “Where is the roof?”

The structure indeed appears roofless. Ehrlick on behalf of the defendant denies that the temple ever had a roof. He points to the bill of lading, which lists what was being moved, and he says that there is no mention of a roof.

Bork on the other hand is adamant the temple had a roof before the move, “as you can hardly light up a sacrifice when it rains if there is no roof.” The defendant claims that if indeed there was a roof, then perhaps the outlaws pocketed it. His lawyer points to a clause in the contract that supposedly absolves the mover from “unlawful acts of the King’s enemies.” I did not spot this clause initially but I now see it with the aid of my magnifying glass. Bork denies ever seeing the clause at all. Furthermore he claims he doesn’t read Latin.

I don’t accept the mover’s argument that Latin is similar to Druidese. I can’t believe that for any Druid “Latin is a piece of cake”. There will be judgement for the plaintiff. I do however discount the plaintiff’s claim by 25% for depreciation. I believe that is a reasonable discount rate for a temple 1200 years old.

I shall now hear submissions as to costs. Were there an offers to settle?”

I trust this helps explain the mystery of Stonehenge. But nobody knows what ever became of Pokey the beagle.

Marcel Strigberger is a humourist trapped inside the body of a civil litigation lawyer – see legalhumour.com.

Ontario’s New Pension Division Rules James Pierlot

Bill 133, the Family Statute Law Amendment Act, 2009, received Royal Assent on May 14, 2009. Bill 133 made changes to a number of statutes directly or peripherally relating to family law matters. These changes include new rules in the Ontario Family Law Act (FLA) and Pension Benefits Act (PBA) for dividing pension benefits can be divided on the breakdown of a spousal relationship. The new rules apply to a court order, arbitration award or domestic contract that provides for a division of pension benefits and which is made on or after January 1, 2012. Under the FLA, pension benefits accrued during marriage are included in a spouse’s net family property. Because pension division is not mandatory in Ontario, equalization of net family properties may or may not involve division of a pension. Non-married spouses are not entitled to equalization of family property under the FLA, but they may divide pension benefits accumulated during a relationship pursuant to a separation agreement. Under the PBA, no more than 50% of a member’s pension benefits can be assigned to a former spouse. The Current Rules

Because there are no prescribed rules for valuing pensions to be divided, separating spouses who wish to divide a pension must obtain the services of a pension valuator. Once a value is determined, the pension may be divided by way of court order or separation agreement provided to the plan administrator. Settlement to the non-member spouse cannot occur until the earliest of the pension plan member’s termination of employment, retirement or death. The non-member spouse can receive settlement in the form of a lump sum transfer only if the member dies before retirement or if the member terminates employment and is entitled to transfer his or her benefits from

the plan. In any other case, the spouse receives a share of the member’s pension when it is paid.

The current rules present a number of problems for separating spouses and pension plan administrators alike. Because there are no prescribed rules for valuing a pension, disputes about value often arise. The timing of settlement, which cannot occur before the member terminates, retires or dies, is outside the control of the non-member spouse. Deferred settlement means that the non-member spouse’s interest in a pension at the date of settlement may be different from the amount estimated in a pension valuation due to a number of factors, including investment gains or losses, changes to benefits provided by the plan, wind up of a pension plan sponsored by an insolvent employer, and the application of the 50% maximum on the date of settlement. Pension plan administrators must often seek clarification or amendment of court orders and separation agreements that are ambiguous or non-compliant with the PBA. The New Rules

Bill 133 adds new sections 67.1 to 67.6 to the PBA, under the heading “Family Law Matters” that will change Ontario’s pension division rules in two important ways: Valuation: Using formulae prescribed in new Ontario Regulation 287/11 (Regulation), pension plan administrators will determine the value of benefits available for division, making it unnecessary for separating spouses to obtain the services of a pension valuator. Settlement: Settlement must be made to the nonmember spouse of an active pension plan member in the form of an immediate lump-sum transfer from the plan.

December 2011 | Briefly Speaking • En Bref

For retired members, settlement is made by dividing pension payments.

Using prescribed forms issued by the Superintendent of Financial Services, plan members and their spouses may apply to a pension plan administrator for a statement reporting the value of a pension accumulated during marriage. After this value is determined, the separating spouses can make a further application to have the value divided. Determining the Preliminary Value

The first step in determining the value of a pension that can be divided is to establish the “preliminary value” (“PV”), which is the value, as determined under the Regulation, of the pension accumulated between the date the member joined the pension plan and the family law valuation date (FLVD). Under PBA section 67.1 and FLA subsection 4(1), the FLVD is the earliest of the date of separation, divorce, marriage annulment or application by a spouse for division of net family property on the basis of improvident depletion. For non-married spouses, the FLVD is the date of separation. For a defined contribution (DC) pension plan, the PV is generally the member’s account balance as at the FLVD. Determining a PV for a defined benefit (DB) pension plan is considerably more complex, and varies depending on the provisions of the plan, the member’s years of service and the member’s status as an active, deferred or retired member. For an active member, the PV is determined under the Regulation using formulae that increases the PV in respect of ancillary benefits such as bridging benefits or early retirement subsidies in proportion to the member’s service. This allows the non-member spouse to receive increased value in respect of such “ancillary” benefits in some proportion to the likelihood that the member will receive them.

of how the IV might be determined for the member of a DB pension plan: Figure 1 – Imputed Value of a DB Pension

54 Months 1996/01/01

144 months

2000/06/01

Plan membership begins

2012/06/01 FLVD

Starting Date Period “H” Period “J”

     

Formula: G x H/J “G” = $330,000 (preliminary value) “H” = 144 “J” = 198 (54 + 144) Imputed Value = $240,000 Maximum amount assignable to spouse: $120,000

In the case of a DC plan member who joined the plan before the starting date, the IV is determined by subtracting the member’s account balance on the starting date from the member’s account balance on the FLVD. Section 19 of the Regulation provides that the account balance on a day 45 days before or after the starting date and closest to the starting date must be used if the account balance on the starting date cannot be determined. In any other case, the IV for a DC plan member is determined as shown in Figure 1. Figure 2 below shows an example of how the IV would be determined for a DC plan member where the account balance on the starting date is known. Figure 2 – Imputed Value of a DC Pension Settlement to the Non-Member Spouse

Determining the Imputed Value

After the PV is determined, the next step in dividing a pension is to establish the “imputed value” (IV), or “Family Law Value”. This is the portion of the PV accumulated during marriage or cohabitation – i.e. between the “starting date” and the FLVD – as determined under the Regulation. Under section 17 of the Regulation, the starting date is normally the date of marriage for married spouses, and the date co-habitation began for non-married spouses. There is a limited flexibility for spouses to choose a different starting date.

Under section 18 of the Regulation, the IV is determined by the formula “G x H/J”, where “G” is the PV, “H” is the period of plan membership between the starting date and the FLVD, and “J” is the period of plan membership used to determine the PV. Figure 1 below provides an example Briefly Speaking • En Bref | December 2011

54 Months 1996/01/01 Plan membership begins

   

2000/06/01 Starting Date

144 months 2012/06/01 FLVD

Account Balance at FLVD: $160,000 (preliminary value) Account Balance at Starting Date (or 45 days before/after): $20,000 Imputed Value: $140,000 ($160,000 - $20,000) Maximum amount assignable to spouse: $70,000

Under PBA sections 67.3 and 67.4, no more than 50% of the IV can be assigned to the non-member spouse. As noted above, settlement to the non-member spouse of an active pension plan member is made in the form of a lump-sum

transfer from the plan. The transfer can be made to another pension plan or to a locked-in registered retirement savings plan or life income fund. Settlement to a deceased spouse of a member is made in the form of a payment to the spouse’s estate.

In the case of a retired member, the spouse receives a share of the member’s pension as it is paid. Payment of this share ceases on the later of the date of the member’s death and the date of expiry of any guarantee period. Spousal survivor benefits required under PBA section 44 are paid to the spouse for life. If the terms of a pension plan permit, a non-member spouse who has not waived rights to a survivor pension may apply to the pension plan administrator to combine his or her share of the retired member’s pension and the survivor pension into a single pension payable for the life of the spouse. Transitional Considerations

Ontario’s new pension division rules apply to a court order, family arbitration award or domestic contract made on or after January 1, 2012, whereas an order, arbitration award or domestic contract made before January 1, 2012 is subject to the current rules, to the extent that it provides for a division of pension benefits. This presents an opportunity for spouses separating before January 1, 2012 to decide whether to divide pension benefits under the old rules or the new rules.

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Fees and Implementation Pension plan administrators may charge a fee to spouses who apply for a statement of imputed value. The maximum fee a plan administrator may charge for each imputed value provided is $200 for a DC pension plan, $600 for DB pension plan, and $800 for a plan that provides DB and DC benefits. As provided in section 25 of the Regulation, a plan administrator must provide a statement of imputed value within 60 days of receiving a properly-completed application. With January 1, 2012 only weeks away, administrators who have not yet implemented systems and procedures to value and divide pensions under the new rules should consider doing so as soon as possible. The eponymous principal of Pierlot Pension Law, James Pierlot practises law in Toronto. He publishes regularly and is Secretary of the Executive Committee of the Ontario Bar Association’s Pensions and Benefits Section.

The eponymous principal of Pierlot Pension Law, James Pierlot practises law in Toronto. He publishes regularly and is Secretary of the Executive Committee of the Ontario Bar Association’s Pensions and Benefits Section.

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December 2011 | Briefly Speaking • En Bref

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Briefly Speaking • En Bref | December 2011

Supreme Court of Canada Update

Summaries Eugene Meehan, Q.C.

he following is a summary of all appeals and all leaves to appeal. This summary covers August 6, 2011 – October 11, 2011. Supreme Court of Canada Update

APPEAL JUDGMENTS CONSTITUTIONAL LAW: CHARTER s.7. s.1; DIVISION OF POWERS Canada (Attorney General) v. PHS Community Services Society (BCCA, January 15, 2010) (33556) September 30, 2011

The Controlled Drugs and Substances Act (CDSA) is applicable to Insite (a safe injection facility) and the scheme of the CDSA conforms to the Charter. However, the actions of the federal Minister of Health in refusing to extend Insite’s exemption under s. 56 of the CDSA are in violation of s. 7 of the Charter, and cannot be justified under s. 1. CRIMINAL LAW: FRAUD; SENTENCING

R. v. Topp (ON. CA, November 20, 2009) (33529) September 23, 2011

Past receipt of illegally obtained funds does not impose an evidential burden on offenders to prove they no longer possess their ill-begotten gains. In the absence of a credible explanation, however, it will often be open to the court to infer that the offender is able to pay a fine, but the court is not legally bound to do so. The probative weight of the inference will depend on the circumstances, and therefore vary from case to case. CRIMINAL LAW: SEXUAL ASSAULT; CONSIDERATION OF THE EVIDENCE AS A WHOLE; CIRCUMSTANCES IN WHICH TRIAL JUDGES’ ASSESSMENT OF THE EVIDENCE CONSTITUTES ERROR OF LAW, THEREBY ALLOWING APPELLANT REVIEW R. v. JMH (Ont. C.A., November 26, 2009) (33667) October 6, 2011

The trial judge, did not in fact, fail to consider the whole of

December 2011 | Briefly Speaking • En Bref

Supreme Court of Canada Update

the evidence, as the Court of Appeal concluded he had. As to what circumstances a trial judge’s alleged mishandling of the evidence gives rise to an error of law which justifies appellate intervention on a Crown appeal from an acquittal, the SCC held: •

• • •

it is an error of law to make a finding of fact for which there is no evidence – however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purpose of this rule the legal effect of findings of fact or of undisputed facts raises a question of law an assessment of the evidence based on a wrong legal principle is an error of law

the trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law.

COPYRIGHT: WHAT IS A “SOUND RECORDING” Re: Sound v. Motion Picture Theatre Associations of Canada, et al (Fed. CA, February 25, 2011) (34210) September 8, 2011

Is anyone entitled to equitable remuneration pursuant to section 19 of the federal Copyright Act, when a published sound recording is part of the soundtrack that accompanies a motion picture that is performed in public or a television program that is communicated to the public by telecommunication? The board answered in the negative and refused to certify the tariffs. The Federal CA, on judicial review, upheld the decision. Eugene Meehan, QC, is a partner with McMillan LLP in Ottawa. eugene.meehan@mcmillan.ca

LEAVES TO APPEAL GRANTED COMMUNICATIONS LAW: SION STATIONS

PRIVATE LOCAL TELEVI-

In the matter of the Broadcasting Act, SC 1991, C. 11; and in the matter of the CRTC (Fed. CA, February 28, 2011) (34231) September 29, 2011

The regime to which this appeal refers is sometimes called the “value for signal” regime, which would permit a private local television station to negotiate with cable television service providers (“broadcast distribution undertakings” or “BDUs”) for an arrangement under which the BDUs provide consideration to the television station for the right to retransmit its signals. CRIMINAL LAW: SEXUAL ASSAULT

Her Majesty the Queen v. DC (Que. CA, December 13, 2010) (34094) August 25, 2011 There is a publication ban in the case and on the names of the parties where the issues involve whether consent is vitiated where a person with HIV does not disclose health status before having unprotected sex if that person’s viral load, which can vary over time, is undetectable; and, at what point does the risk become “significant” enough and harm becomes “serious” enough for conduct to be considered criminal. Briefly Speaking • En Bref | December 2011

Changes on the Horizon for Canada’s Refugee System

Is Bill C-4 anti-smuggling or anti-refugee? Does Bill C-11 strike the right balance between efficiency and fairness? Caitlin Maxwell

wo pieces of federal legislation have recently been making headlines. On June 16, 2011, the Conservative government re-introduced its controversial “anti-smuggling” legislation (formerly Bill C-49, now Bill C-4), the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, which would introduce significant changes to the Immigration and Refugee Protection Act (IRPA).

Bill C-4: The proposed Preventing Human Smugglers from Abusing Canada’s Immigration System Act

The Government maintains that C-4 will deter “queue jumpers” who abuse Canada’s generous immigration system. In a September 27th op-ed in the National Post, Minister of Citizenship, Immigration and Multiculturalism Jason Kenney stated, “Bill C-4 is specifically designed to limit the pull factors for migrants who would abuse Can-

ada’s generosity.” Kenney’s position is that there is only one “legal” way for refugees to come to Canada – to be resettled through UN refugee camps.

Refugee advocates have roundly criticized C-4 for failing to punish human traffickers; instead it would punish refugees, for whom there is no “queue” to jump. According to Lorne Waldman, president of the newly-formed Canadian Association of Refugee Lawyers (CARL), and CARL executive member Professor Peter Showler:

Canada voluntarily signed the UN Refugee Convention. We agreed that if asylum seekers reached our borders, by whatever means, and met the definition of a refugee under law, Canada would not return them to the country where they feared persecution. It is commendable that Canada also resettles a few thousand refugees from refugee December 2011 | Briefly Speaking • En Bref

camps every year. This does not, however, negate Canada’s legal and moral obligation to accept refugees who manage to arrive at our borders without our assistance.

The Canadian Bar Association voiced its concerns about the legislation in submissions on the original Bill C-49, and continues to oppose it. “The proposed legislation called for various changes including mandatory detention and punishment for designated claimants and refugees by denying them liberty, legal rights and access to permanent resident status, contrary to Charter protections and to international obligations” says Chantal Arsenault, past chair of the CBA National Immigration Law Section. The Immigration Law Section opposed the Bill and provided its recommendations on the issue in November 2010. Says Arsenault, “The Section still stands by its position. The introduction of Bill C-4, unchanged from the original Bill C-49, did not take our concerns into account. We look forward to providing our critique of the new Bill.” The key provisions of C-4 include a new ministerial power of designation and mandatory detention for designated individuals. Designated asylum seekers would face a year in detention before a detention review. They would not be released until their refugee claims are determined, or until release is ordered by the Immigration Division or by the Minister. The Minister would be able to designate a group of asylum seekers as an “irregular arrival” in two circumstances. The first would be if the Minister is of the opinion that an investigation into the group, or any person in a group, “cannot be conducted in a timely manner” (s. 20.1(a)).

University of Victoria law professor Donald Galloway has expressed concern that “timely” is not defined. CARL contends that this is unconstitutionally vague and does not provide fair notice to those affected. The organization also takes the position that the provisions are an infringement of liberty that “far exceeds what is necessary to deter human smugglers or traffickers.”

In the second scenario, the Minister may designate a group if she or he has “reasonable grounds to suspect” that the passage to Canada was organized, induced, aided or abetted (knowingly or recklessly) against immigration laws, and it was for the profit or benefit of, or at the direction of or in association with, a terrorist group or criminal organization. As refugee lawyer Raoul Boulakia explains, this provision allows the Minister to designate persons as “irregular” if she or he suspects someone has in any way encouraged their travel to Canada without a required document. Only a minority of refugee claimants actually arrives with visas and many have had to pay for assistance at some Briefly Speaking • En Bref | December 2011

stage of their journey. In fact, many of those who arrive with a visa have done so improperly, since a visa will not be granted if an embassy knows or suspects the person will claim refugee status.

The CBA concluded the anti-smuggling legislation was contrary to “Charter protections against arbitrary detention and prompt review of detention, as well as Canada’s international obligations respecting the treatment of persons seeking protection” in its original submissions on C-49. CARL seconds this argument, submitting that C-4’s detention provisions violate ss. 7, 9, 10(c), and 12 of the Charter.

The proposed legislation called for various changes including mandatory detention and punishment for designated claimants and refugees by denying them liberty, legal rights and access to permanent resident status. Litigation that will inevitably follow the Bill will reverberate throughout other areas of law. The Supreme Court already pronounced on many of these principles in the 2007 Charkaoui decision on security certificates, but the comments on fundamental justice owed to foreign nationals, particularly on the issue of regular reviews of detention, are not reflected in C-4.

The Canadian Council for Refugees and Amnesty International contend that mandatory detention is inconsistent

Bill C-49, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act

From the Canadian Bar Association’s Bill C-49 submission, November 2010: “Bill C-49 amends the Immigration and Refugee Protection Act to address organized, irregular mass arrivals of refugee claimants. It follows two cargo ship landings on the West Coast in the past 13 months, which placed pressure on Immigration and Refugee Board and Canadian Border Services Agency resources and gave rise to a significant, negative public response.” OBA/CBA contributors: Mario L. Bellissimo Ormston, Bellissimo, Rotenberg Stephen Green Green & Spiegel LLP Gabriela Ramo Greenberg Turner Raoul Boulakia Barrister and Solicitor Randolph K. Hahn Guberman, Garson Philippe Capelle Capelle Kane Barbara J. Caruso Corporate Immigration Law Firm Henry J. Chang Blaney McMurtry Barristers and Solicitors LLP

The Canadian Press/Jonathan Hayward

with Canada’s responsibilities as a state party to the 1951 Refugee Convention, which explicitly prohibits States from imposing penalties on refugees for illegal entry, and which is incorporated into IRPA. The Canadian Civil Liberties Association has noted that the Bill fails to account for children, pregnant women, elderly individuals, and those with disabilities, who would all be subject to mandatory detention.

Even if “designated foreign nationals” are vindicated by having their refugee claims accepted, they are not permitted to apply for permanent residence status or a temporary resident permit until five years after the Police and military board the MV Sun Sea after it was escorted into CFB Esquimalt in Colwood B.C. final determination of their claims (currently successful claimants are Boulakia contends that in addition to violating s. 7 of allowed to apply immediately upon being accepted). These the Charter by allowing prolonged investigatory detenpenalties stand in the way of family reunification. tion, C-4 subjects all immigrants to Canada to the possibility of arbitrary and prolonged incarceration. He believes Lorne Waldman regards this provision as a “marked dethe legislation will “divide Canada, turning non-citizens parture from Canada’s historical position which has been into people under a heightened risk of incarceration, to integrate persons accepted as refugees into Canada” – without proof or trial.” a further violation of the 1951 Convention, which grants rights of assimilation and naturalization to refugees. Peter Showler echoes this warning in his comments on C-4: “It is astounding that the government is proposing to Although the new designation and mandatory detenimprison any group of people for up to a year with no aution provisions have been flagged as the most problemthority for any court to review the legality of the detenatic, other amendments are also being questioned. Raoul tion.” He notes that group incarcerations have traditionBoulakia is particularly troubled by amendments which ally been limited to times where there is an extreme threat would expand the Immigration Division’s power to keep a against the state, such as war; in spite of this, internments foreign national detained to include cases where the Minhave too often come to be regretted after the fact. “Boat ister is simply inquiring into whether a person is inadmisarrivals of relatively small groups of asylum seekers—less sible for ordinary criminality, serious criminality, or orgathan 2% of the annual number or refugee claimants—do nized criminality. not constitute such a national emergency. It is time for Canadians to take a moral gut check.” Boulakia notes that the amendment is not restricted to designated foreign nationals, but applicable to all foreign Bill C-11: the rolling enactment of the Balnationals and permanent residents: “The government is anced Refugee Reform Act basically sneaking a provision applicable to all non-citizens into a bill put forward as applying solely to people The second piece of legislation is Bill C-11, The Balwho have been ‘smuggled’.” anced Refugee Reform Act. The Act received royal assent in June 2010; however, much of its implementation has He regards these amendments as a “substantial shift” been pushed to June 2012. C-11 purports to simplify the in Canadian law, subjecting migrants to “indefinite incarrefugee claim process and speed up processing times, but ceration” on the sole basis that the Minister has a “reasonrefugee advocates have questioned whether it balances able suspicion” that they have committed a crime, and is efficiency with fairness. investigating that suspicion. These concerns are shared by the CBA: “Extending the authority to detain, particularly The key changes include a new appointment process for permanent residents, is a creeping erosion of civil and for Refugee Protection Division (RPD) members (civil serlegal rights. There is no apparent link of these provisions vants instead of Governor-in-Council appointments); the to the issue of human smuggling or any attempt to limit its creation of a pre-hearing interview; the implementation application to circumstances of human smuggling.” of the Refugee Appeal Division (RAD) (which was created December 2011 | Briefly Speaking • En Bref

through IRPA but never brought into force); limited access to pre-removal risk assessments (PRRAs) and temporary resident permits (unavailable for those whose claim has been rejected, abandoned, or withdrawn within a year); the creation of new categories of refugees who may be subject to different time limits at the RAD (a “manifestly unfounded claim” category and a “designated country” category); and amendments to the humanitarian and compassionate provisions (removing refugee determination factors from the decision-making process and only allowing public policy considerations to come into play on the Minister’s initiative). C-11 has not generated as much controversy as C-4; opposition parties voted in favour of the legislation. However, some question whether the legislation’s problems outweigh the welcome changes (namely, the at-long-last implementation of the RAD).

Less time for claims, little time for appeals

At the inaugural meeting of CARL in September, refugee lawyers expressed concern for the short timeline of the initial interview. This interview replaces the filing of a Personal Information Form (PIF), a cornerstone of refugee claims, which gives claimant the chance to tell their stories through a clear and coherent personal narrative. Such a written narrative can rarely be produced in one sitting; it takes time for counsel to build enough trust with their clients to discuss the often harrowing details of the refugee claim, determine what the key elements of the claim are, and understand the chronology of the events. Furthermore, the new interviews are set at no earlier than 15 days after a claim has been referred to the Refugee Protection Division (RPD), whereas PIFs were due at 28 days; this timeframe has been criticized as being too short for clients to prepare or to seek out counsel, especially if they are applying for a legal aid certificate. Some question whether the new process is designed to eliminate counsel involvement altogether. Timeframe aside, there are questions about the efficacy of the interview itself: the officer conducting the interview is tasked with transcription, so will be typing up questions and answers while conducting the interview. Particularly in cases involving trauma, such as torture or sexual violence, claimants may not be comfortable relaying this information at the initial interview. It is unclear what kind of training civil servants will receive prior to conducting the first interview with claimants. Claimants will be asked to sign the “transcript” following the interview once an interpreter reads it back to them. This will then be used to assess their credibility at the subsequent hearing. Timeframes are also a concern with the RAD. Although the RAD is a welcome addition to the refugee system in Canada, the appeal must be not only filed but perfected 15 working days from receipt of the RPD decision. In addiBriefly Speaking • En Bref | December 2011

tion, most appeals are to take place on paper rather than orally—unless there is a serious credibility issue that may determine the outcome of a case—leaving less room for effective advocacy.

Other amendments

In submissions on C-11 after first reading, the CBA’s Immigration Section raised concerns with the requirement that evidence before the RAD must be “new” or not reasonably available prior to the rejection of the claim by the RPD—a requirement that survived in the final version of the Act. Moreover, this requirement only applies to the claimant’s documentary evidence; the amendment is silent on the Minister’s submissions. It is unclear how a court would interpret this: it could mean that the Minister is permitted to present any evidence she or he chooses before the RAD—including evidence which should have been submitted at the RPD hearing. The restrictions on access to a PRRA will likely be challenged: 12 months is a long time for country conditions to change and it is possible clients will be at risk if removed in the year following a negative determination.

Designated countries

The CBA also took issue with designating nationals of certain countries, noting: There are serious problems in empowering the government to designate a list of countries considered democratic and ‘safe,’ but from which a significant number of unfounded refugee claims are made, for the purposes of eliminating procedural rights for these countries’ refugees. Not only is refugee determination an individualized assessment, of even greater concern is the likelihood that the list will become politicized.

Although the final version of the bill took into account the CBA’s recommendations for adding human rights and state protection criteria to the designation process, it did not incorporate the recommended sunset clause of one year. It is unclear how often the list of designated countries will be subject to review.

At the end of the day, the new and proposed legislation will have refugee lawyers working hard to ensure their clients’ rights are respected, and this will have effects on related areas of law, criminal and administrative in particular. The majority of Bill C-11, the Balanced Refugee Reform Act, comes into force on June 29, 2012. At the time of printing, Bill C-4, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, is being debated in the House and has not yet passed second reading. Caitlin Maxwell is an articling student at Jackman & Associates in Toronto.

The Evolution of the Motion for Extension of Time Andrea Sanche

he test on a motion for extension of time to perfect an appeal has undergone a slow but steady evolution. From its humble beginnings as a test of whether the “justice of the case” permits an extension, the court has crafted a five-part test for an appellant to meet, largely borrowing from decisions on motions to extend time to file a notice of appeal. Recently, in Mauldin v. Cassels Brock & Blackwell LLP et al., 2011 ONCA 67 [Mauldin], a recent Ontario Court of Appeal decision, the Honourable Justice Weiler confirmed that there are five elements to the test. In so doing, the Court has worked a loosely-guided exercise of judicial discretion into a test appellants must meet. It is important for lawyers to note that the courts have endorsed similar tests on motions for extension of time to file a notice of appeal and to perfect an appeal. Significantly, the “umbrella”

concept of the “justice of the case” has now become a part of a test comprised of its very own constituent parts. Rather than an overriding element or broader rule of fairness that encourages a balanced and flexible approach, “justice of the case” is now a factor of the test itself.

Traditionally, the court has considered only whether the “justice of the case” favours permitting an extension of time to perfect an appeal. The “justice of the case” is an overarching principle which can be analysed using three factors, as is set out in Chuang v. Royal College of Dental Surgeons (Ontario) 77 O.R. (3d) 280 [Chuang]: (1) the existence of a bona fide intention to appeal within the time period; (2) the length of the appellant’s delay in pursuing the appeal; and, (3) the merits of the appeal. Overall, the courts were generous in considering many factors in deDecember 2011 | Briefly Speaking • En Bref

termining the “justice of the case”; the test was liberally applied and judges were flexible in using their discretion.

In her decision in Mauldin, however, Justice Weiler appended two additional elements to this three-part test: (4) whether there is prejudice to the respondent in granting the extension; and (5) whether the “justice of the case” requires the granting of an extension. In expanding the test, Justice Weiler explicitly relied on the test used by courts in determining whether to permit an extension of time for filing a notice of appeal. Her Honour’s reasoning was that the test for late filing was useful in structuring a judge’s discretion on a motion for an extension of time to perfect. This reasoning, moreover, was also adopted in other extension of time to perfect decisions.

In Monteith v. Monteith, 2010 ONCA 78 [Monteith], cited in Mauldin, the appellant sought an extension of time to perfect his appeal. In his decision, the Honourable Justice MacPherson wrote that, in his view “the test for extending the time for perfecting an appeal should be similar to the test for extending the time for filing a notice of appeal”. The test for extending time to file notice is comprised of five criteria: (1) whether the appellant formed an intention to appeal within the relevant period; (2) the length of the delay and explanation for the delay; (3) whether there would be any prejudice to the respondent; (4) the merits of the appeal; and (5) whether the “justice of the case” required it. Justice MacPherson described the fifth factor —the “justice of the case”—at paragraph 20 of his decision as “an ‘umbrella’ factor, requiring the motion judge to step back, balance the preceding factors, and consider any other factor that might be relevant in the particular circumstances of the appeal”. Both the Monteith and Mauldin decisions rely on the earlier decision of Rizzi v. Mavros, 2007 ONCA 350 (CanLII) [Rizzi]. In Rizzi, however, the court was faced with a motion for an extension of time to file a Notice of Cross‑Appeal. In Rizzi, the court also adopted the five-factor extension of time for filing test. In so doing, however, Justice Gillese relied on the earlier Court of Appeal decision of Justice Laskin in Bratti v. Wabco Standard Trane Inc., 1994 CanLII 1261 (ON C.A.) [Bratti], in which His Honour denied a motion for an extension of time to file a notice of appeal and, in so doing, emphasized the “justice of the case”. At paragraph 17, His Honour wrote that:

not set out a specific test but, rather, emphasized, as in the quote above, that in exercising its discretion, a court ought to be governed by an overarching responsibility to justice, whatever factors might comprise it in the case before it.

Since Justice Laskin’s decision in 1994, however, this overarching principle has been transformed; now, it comprises the newest element of a five-part test. Rather than remaining a guiding principle as it was in Bratti and Chuang, comprised of different factors, the “justice of the case” is a factor in its own test, sitting alongside its constituent parts.

Justice Weiler’s decision seemingly has established that the tests on both a motion to extend time to file notice of an appeal and on a motion to extend time to perfect an appeal are the same. While this has certainly created consistency for counsel, who may now see some harmony on motions in both cases, it may conflate two subtly different motions. As Justice Gilesse noted in Rizzi at paragraph 25: Had the motion been for an extension of time to file an appeal, the result might have been different. In such a situation, the public interest in the finality of judgments may be paramount. But, this motion is not for an extension of time to file a notice of appeal; it is a motion to permit the filing of a notice of cross-appeal. Finality considerations do not come into play because this case has not been finally resolved; the appeal has yet to be heard.

Indeed, a motion to extend time to file an appeal may necessitate a five-part test as the parties’ expectations of (and the public’s interest in) certainty and finality are still at play. In a motion to extend time to perfect, however, the court’s true concern may very well be the “justice of the case”. Indeed, as extensions may be made on terms, as was the case in Mauldin, and as certainty and finality are less pressing concerns, it may be that more unstructured judicial discretion to consider many factors is merited. Nonetheless, at this time, counsel should note that on both motions, the five-part test articulated in Mauldin is that which must be met.

Andrea Sanche is an associate practising civil litigation at Ricketts, Harris LLP, with a focus on commercial and employment litigation. She was co-counsel on the Mauldin motion, discussed in this article.

While appellate courts have considered a number of different factors in determining whether to grant leave to extend the time for appealing, the governing principle is simply whether the “justice of the case” requires that an extension be given.

In his endorsement, Justice Laskin simply set out various reasons why, in that case, the justice of the case did not weigh in favour of granting an extension. Justice Laskin did

Briefly Speaking • En Bref | December 2011

Changing Climate, Changing Legal Responsibilities Laura Zizzo and Travis Allan al discussion on climate change. The Kyoto Protocol, the most famous of the UNFCC agreements, even contained binding legal commitments on behalf of many industrialized countries to reduce their GHG emissions relative to their 1990 emissions. Canada, for example, promised to reduce its emissions 6% by 2012.

As we enter 2012, you’d be forgiven for thinking things look bleak: Canada’s emissions are over 25% higher than they were in 1990, and the federal government is reluctant to make any further commitments on the subject. Most action on climate change has been taken, if at all, by provinces and cities.

C 54

limate change is a global problem. Greenhouse gases (GHGs) released anywhere affect the climate everywhere. This simple fact has led to a concerted effort to create a global set of rules to reduce GHG emissions. The United Nations Framework Convention on Climate Change (UNFCCC) has been the forum where states have attempted to hash out a collective plan to address climate change. The UNFCC has played a tremendously important role in stimulating glob-

Recognizing that the current patchwork of regional actions in Canada is not an effective national climate strategy, the Canadian Bar Association (CBA) passed a resolution on climate change at its 2011 annual meeting in Halifax. The CBA urged federal, provincial and territorial governments to “take immediate action to work together to develop and implement comprehensive national climate regulations that include mandatory greenhouse gas emission reductions and carbon pricing”. The slow pace of attempts to negotiate comprehensive rules on GHGs has led many professionals, including lawyers, to ask whether climate change matters to their practices until some sort of international, or at least national, binding limit on GHG emissions is finalized.

December 2011 | Briefly Speaking • En Bref

In fact, climate change matters more to lawyers and other professionals each day. We may not see the immediate bonanza of carbon credit deals that some were expecting, but climate change risks and opportunities are all around us. Before a national strategy emerges, there are still challenging issues requiring legal attention and counsel in our province and across Canada. Ontario Green Energy Act

Ontario has established itself as a leader among North American jurisdictions with the implementation of the Green Energy Act, which promoted energy efficiency and provided continent-leading subsidies for renewable energy generation. The resulting boom in renewable energy activity led to a flurry of new work for lawyers, from interpreting the Ontario Power Authority’s standard-form contracts to negotiating lease amendments for commercial rooftops that, before they were considered for solar energy installations, seemed relatively uninteresting. After Ontario’s recent provincial election, which returned the governing Liberals (who passed the Green Energy Act) to power, we anticipate that renewable energy transactions will remain an important source of interesting, cuttingedge legal work. Ontario’s Emerging Regulatory Regime

Ontario is one of 5 jurisdictions in North America (others being California, New Mexico, British Columbia and Québec) committed to launching a regional cap and trade system under the Western Climate Initiative (WCI).

Cap and trade involves setting a limit on the quantity of GHGs a group (such as one industry sector, or all of the industries in a country) may emit and letting members of the group trade carbon credits to determine how the right to emit GHGs is allocated within the group. Many commentators have argued that it is the policy that most effectively balances economic, political and environmental concerns. In 2009, Ontario amended the Environmental Protection Act (the “EPA”) to explicitly enable regulations to establish cap and trade. An important first step relates to the reporting of GHGs. Ontario’s GHG reporting regulation, which came into force on January 1, 2010, requires GHG emitters with facilities in covered sectors that emit over 25, 000 tonnes of carbon dioxide equivalent gas to account for emissions. This regulation covers the “who, what,

Briefly Speaking • En Bref | December 2011

how and when” of GHG emissions reporting, and, in time, the reported data will likely be used to require emissions reductions. On June 1, 2011 the first emissions reports were due, covering 2010 emissions of covered facilities. In 2012, the regulations will require GHG data to be verified by an accredited third party, which is predicted to increase the quality of emissions data. The reporting regulations are an important warning: they put covered facilities on notice of the emission caps that are likely coming. In addition, they will hopefully help covered companies find more efficient ways to use energy. While it may suit some companies to respond to regulations only, others may want to begin preparing for emissions limits. This can include both looking for ways to minimize future compliance costs and locating opportunities, such as creating offset credits (carbon credits for activities that avoid or sequester GHG emissions outside of the covered sector, such as planting trees). In addition to helping covered clients understand the regulation, lawyers and other professional advisors are currently helping others, such as accredited verifiers, understand where they fit in this new regulatory system. Securities Disclosure and Voluntary Reporting

Public companies or other reporting issuers as defined by the Securities Act may have obligations to report environmental information, including GHG emissions, if they are material, through Public Company Continuous Disclosure Requirements. Canada’s Securities Administrators, including the Ontario Securities Commission, released guidance on this subject in October of 2010. This guidance sets out expectations that Canada’s public companies will disclose material environmental and climate risks to investors and the public. The guidance is already encouraging companies to take a more proactive approach to think-

ically more expensive prices for fossil fuels. These changes will be more pronounced with time.

A recent study by the National Roundtable on the Environment and the Economy reveled that climate change will likely costs billions of dollars per year in the coming decades. Inevitable risks (to name just a few) include supply chain disruptions; property damage from extreme weather events; relocation due to flooding and sea level rise; and dealing with worker migration.

Public and private sector organizations are only beginning to come to terms with the ways that adaptation issues will affect their facilities, contracts and operations. During this process, which will take years, it will be tremendously important for professional advisors, including lawyers, to understand both the risks and opportunities from a changing climate. Moving forward

ing about and disclosing environmental risks. Risks that should be disclosed include (but are not limited to) those associated with GHG regulation and carbon prices as well as the physical effects of climate change, such as changing weather patterns and water availability.

Additionally, many companies and organizations already engage in voluntary reporting through bodies like the Carbon Disclosure Project or independent sustainability reporting. It is crucial that companies engaging in voluntary reporting ensure consistency and legitimacy across all public statements. Now that both the Ministry of Environment and securities regulators will be watching environmental disclosure, and GHG disclosure particularly, companies may want to pay special attention to their voluntary reporting and reassess public disclosure to ensure consistency, calling upon their professional advisors to assist them in quantifying and correctly disclosing risks.

Developing an adequate political, economic and social response to these issues will not be easy, and it certainly will not be quick. Clients are now beginning a gradual process that involves understanding how the twin imperatives of reducing GHG emissions and adapting to changes in climate filter down to them, whether they are governments, companies or individuals. While we donâ&#x20AC;&#x2122;t have an international agreement that solves our climate change problem, it would be incorrect to conclude that climate change does not matter. Rather, the examples weâ&#x20AC;&#x2122;ve discussed above demonstrate just how important understanding climate change is to providing good advice to our clients. Laura Zizzo and Travis Allan are founding Partners of Zizzo Allan Climate Law LLP in Toronto, their practice focuses on climate and environmental law and policy.

Adaptation

Finally, we would be remiss if we did not mention adapting to climate change. Until recently, much of the discussion around climate action has focused on mitigation, which means lowering GHG emissions to prevent catastrophic climate change. However, even if GHG emissions are significantly lowered, we face inevitable changes in our physical environment, including melting permafrost, more intense storms, changes in water levels and dramat-

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

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