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

February 2012 | Vol. 37 No. 1

EnBref

Brieflyspeaking Representing Clients with Mental Health Issues

CPD Celebrates

New Accessibility Compliance Rules

One Year

PM 1681978


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February 2012 | Briefly Speaking • En Bref


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

11 18 42 50

Representing Clients with Mental Health Issues

Ontario CPD is One Year Old! New Accessibility Compliance Rules —  What Does it Mean for Lawyers? A New Era for Canadian Producers and Broadcasters

Editorial Board/Comité rédacteur Jamie Trimble Chair / Président Hughes Amys LLP Mark L. Berlin McGill University Institute for the Study of International Development

FEATURES 22 The Debate of Nuisance Law in Ontario | John Doherty & Roberto Aburto

Simon Borys Student Editor-Queen`s University

24 University of Windsor’s New Law Dean | J. Andrew Sprague

Sarah L. Boyd Jackman & Associates

26 Who Was Your Law School Dean? | J. Andrew Sprague

Alastair Clarke York Community Services

32 Five Evidence Rules to Keep in Mind Before a Civil Trial | Sam R. Sasso

Jacqueline Armstrong Gates Gowlings

47 Survey of the Circumstances of Lawyer and Law Students with Disabilities

Patrick James Pinto Wray James LLP

COLUMNS

E. James T. Hook Hook Seller & Lundin LLP

2 President’s Message | Message du président | Paul Sweeny

Elizabeth C. Mourao Ricketts Harris LLP

6 Nota Bene

Questions or Comments? / Questions ou commentaires?

9 Lawyers in Legislature 30 Just for Laughs | Me, Me and My RRSP | Marcel Strigberger

Editorial Team, Briefly Speaking/ Rédaction, En bref

32 Supreme Court of Canada Update | Eugene Meehan, QC

Ed Borkowski Director, Communications and Marketing/ Directeur, communications et marketing 416-869-1047 ext/poste 318 eborkowski@oba.org

44 CBA News 48 Book Review | Mediating Justice: Legal Dispute Negotiations by the Hon. George A. Adams, QC | The Hon. James Farley, QC

Catherine Brennan Editor/Rédactrice Spécialiste de communications 416-869-1047 ext/poste 357 cbrennan@oba.org Janet Weldon Graphic Design/Graphisme 416-869-1047 ext/poste 363 Filippo Conte Bilingual Public Relations Lead/ Responsible bilingue des relations publique 416-869-1047 ext/poste 346 Nicholas Casimir Advertising Sales Vente d’annonces 416-869-1047 ext/poste 406 ncasimir@oba.org

Briefly Speaking • En Bref | February 2012

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President’s Message

The Voice of the Profession Paul Sweeny

A

s we begin a new year, I am now half way through my presidential year — a year that started off with a boom (followed by a brief echo).

The boom: In my first weeks as president, Drew Hasselback of the National Post gave very positive national coverage to one of the principal goals of my mandate - improving the public perception of lawyers. In the context of responding to the Governor General's speech at the Canadian Bar Association CLC in Halifax, my interview with Drew was an opportunity for me to show a national, mainstream audience what I know to be the case: Our PR problem is the gap between the actual positive contributions of lawyers to society and the public's understanding of the value and benefit of what we do.

Drew posted my “Rant”— a parody of the Molson Canadian "I am Canadian" rant in which I dispel, in a tongue in cheek way, the myths about lawyers, from the oft heard punch lines to the more insidious disregard for the generosity with which lawyers give of their time and resources. 2

The rant got positive attention from students and seasoned professionals alike.

It all felt very good; an important plug for lawyers, with a touch of humour thrown in, until...

The echo: Two days later Jonathan Clancy, OBA associate director of media relations, sent me the following e-mail (one of Jon's many great qualities is that he doesn't mince words): Mitch Kowalski, a blogger with the Legal Post, has published a very negative analysis of the rant video. I followed the link and read the opening salvo:

New Ontario Bar Association President Paul Sweeny has addressed the public perception of lawyers as stiff, arrogant, humourless and pompous by starring in a video that is stiff, arrogant, humourless and pompous.

February 2012 | Briefly Speaking • En Bref


President’s Message I felt that sinking feeling in the pit of my stomach. It was a parody — I have a sense of humour. With the benefit of time (which heals all wounds), I no longer worry about the fact that Mitch Kowalski has apparently never seen a beer commercial, but I do continue to worry about the pervasive nature of the negative perception of lawyers. It is complicated. But fear not, I am still focused on having this issue addressed. The year will march on, day by day, and the work of the Ontario Bar Association will continue.

On the legal education front, we will continue to use our web casting capabilities to the fullest. Our programs will continue to be run and broadcast throughout Ontario.

speak out to defend the rule of law and the principles of fundamental justice.

The Ontario Bar Association: We are responsible; we are democratic; we are diverse; our foremost concern is acting in accordance with the best interests of our members - lawyers, judges, law professors and law students.

What can we see on the horizon? What will come up during the course of this year? The Law Society is reviewing the articling process; changes will be made. A proposal for a practical legal education program for those who cannot get articling positions may come to fruition. There will be government cutbacks. The Ontario Bar Association has established a task force to provide advice

Our PR problem is the gap between the actual positive contributions of lawyers to society and the public's understanding of the value and benefit of what we do.

My President’s Tour is taking me across the province. I bring with me one hour of accredited professionalism and an opportunity to talk informally about local issues. I hope to use my persuasive powers to solidify and grow membership. Look for me in a courthouse or meeting room near you.

By being a member of the Ontario Bar Association, you signal your support of an association that advocates for changes in the law for the benefit of the general public and the profession. This is a big part of what we do. As Margaret Mead said, “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” While we don’t change the world every day, we regularly make changes to legislation for the benefit of the citizens and the improvement of the law. And, guess what folks, this doesn’t happen without input from our members. If you are an OBA Section member, you may have directly participated in making changes to legislation.

from lawyers at the front lines of the justice system to ensure wise efficiencies are identified and essentials of justice protected. The Law Society will continue to assert its mandate of governing the profession in the public interest and the Ontario Bar Association will continue to advocate on behalf of our members. The distinction between the regulator and professional associations must be sedulously fostered. My year is half over, yours is just beginning. I hope you will make a commitment this year (belated is okay with me) to continue, renew or start your involvement in the Ontario Bar Association and enjoy the benefits to you and the profession that this organization offers. Remember that, together, we are the voice of the legal profession. Paul Sweeny, Evans Sweeny Bordin LLP

We are involved in the political process. The CBA and the OBA, as a branch of the CBA, is acknowledged to be the voice of the profession by governments — federal, provincial and territorial. We have seats on federal, provincial and territorial judicial advisory committees. We are consulted with respect to the appointment of Supreme Court of Canada judges. We shape the face of the judiciary. We Briefly Speaking • En Bref | February 2012

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Message du président

La voix de la profession Paul Sweeny

E

n ce début de la nouvelle année, j'en suis déjà à la moitié de l'anné de mon mandat de président - une année qui a débuté par un grand coup (suivi d'une brève réplique).

Le grand coup : Au cours de mes premières semaines à titre de président, Drew Hasselback, du National Post, a couvert de façon positive, avec une portée nationale, l'un des principaux objectifs de mon mandat - améliorer la perception qu'à le public des avocats. Dans le cadre de ma réponse au discours du gouverneur général à la Conférence juridique canadienne de l'Association du Barreau canadien (ABC) à Halifax, non interview avec Drew m'a donné l'occasion d'expliquer à un large auditoire national ce que je sais être la question prioritaire : notre problème de relations publiques est l'écart existant entre la contribution réelle et positive des avocats à la société et la perception du public quant à la valeur et aux avantages de cette contribution.

Drew a affiché la vidéo de mon « cabotinage » - une parodie du « I am Canadian », publicité liée à la bière Molson Canadian, où j'osais dénoncer les mythes concernant les avocats, que l'on parle des phrases-choc souvent répétées ou du plus insidieux mépris envers la générosité avec laquelle les avocats mettent à contribution leur temps et leurs ressources. Les étudiants et les professionnels expérimentés ont reçu positivement mon discours humoristique. Tout a été très bien perçu; une promotion pour la profession d'avocat, avec une pointe d'humour, jusqu'à...

La réplique : Deux jours plus tard, Jonathan Clancy, directeur associé, relations avec les médias, de l'Association du Barreau de l'Ontario (ABO), m'envoie le message de courriel suivant (l'une des grandes qualités de John est 4

qu'il ne prend pas de détours) :

Mitch Kowalski, un blogueur associé au Legal Post, a publié une analyse très négative de la vidéo humoristique.

J'ai cliqué sur le lien et lu la salve d'ouverture :

Le nouveau président de l'Association du Barreau de l'Ontario, Paul Sweeny, a qualifié la perception qu'a le public des avocats de rigide, dépourvue d'humour et de pompeuse en se mettant en vedette dans une vidéo rigide, arrogante, dépourvue d'humour et pompeuse.

J'ai senti un pincement au creux de mon estomac. C'était une parodie - j'ai le sens de l'humour. Avec le temps (qui guérit toutes les blessures), je ne m'en fais plus avec le fait que Mitch Kowalski n'ait apparemment jamais vu un commercial de bière, mais je m’inquiète encore de la nature profonde de la perception négative envers les avocats. C'est quelque chose de compliqué. Mais, n'ayez crainte, je m'intéresse toujours à cette question. L'année s'écoulera, un jour après l'autre, et le travail de l'Association du Barreau de l'Ontario se poursuivra.

Sur le plan de l'éducation juridique, nous continuerons à utiliser pleinement nos capacités de diffusion sur le Web. Nos programmes seront maintenus et diffusés à l'échelle de la province. Ma tournée à titre de président me mène partout dans la province. Partout où je vais, j'offre une heure de professionnalisme accrédité et l'occasion de discuter de façon non formelle des enjeux locaux. J'espère mettre à profit mon

February 2012 | Briefly Speaking • En Bref


Message du président pouvoir de persuasion pour solidifier et augmenter notre effectif. Vous me verrez dans un palais de justice ou une salle de réunion près de chez-vous.

En qualité de membre de l'Association du Barreau de l'Ontario, vous manifestez votre soutien à une association qui fait la promotion du changement des lois, dans l'intérêt du grand public et de la profession. Cette mission représente une très grande partie de nos activités. Comme Margaret Mead disait, « Ne doutez jamais qu'un petit groupe de gens déterminés puisse changer le monde. En fait, ça s'est toujours passé comme ça. »

Le gouvernement pourrait procéder à des coupures. L'Association du Barreau de l'Ontario a mis sur pied un groupe de travail dont le mandat est de conseiller les avocats de première ligne du système juridique de façon à que des possibilités sensées d'économie soient identifiées et que les objectifs premiers de la justice soient protégés. Le barreau continuera à se conformer à son mandat qui consiste à administrer la profession dans l'intérêt du public, et l'Association du Barreau de l'Ontario, à défendre les intérêts de ses membres. La distinction entre l'autorité de réglementation et les organismes professionnels doit être encouragée avec vigueur.

Notre problème de relations publiques est l'écart existant entre la contribution réelle et positive des avocats à la société et la perception du public quant à la valeur et aux avantages de cette contribution. Bien que nous ne changions pas le monde tous les jours, nous changeons périodiquement la législation, au profit des citoyens et pour l'amélioration des lois. Et, devinez mes amis, cela ne peut se faire sans la contribution de nos membres. Si vous êtes membre d'une section de l'ABO, vous avez possiblement directement participé à apporter des changements à la législation.

Nous participons au processus politique. L'ABC et l'ABO, membre de l'ABC, sont reconnues par les gouvernements - fédéral, provinciaux, et territoriaux - comme les porte-parole de la profession. Nous siégeons aux comités consultatifs de la magistrature fédéral, provinciaux et territoriaux. Nous sommes consultés pour la nomination des juges à la Cour suprême du Canada. Nous modelons le visage de la magistrature. Nous faisons entendre notre voix pour défendre la primauté du droit et les principes de justice fondamentale.

Mon année à la présidence est déjà à demi terminée, la vôtre ne fait que commencer. J'espère que votre engagement se poursuivra cette année (qu'il soit tardif ou non, ça me va), renouvelez votre participation à l'Association du Barreau de l'Ontario, ou commencez à y participer, et profitez des avantages qu'offre l'organisation, à vous et à votre profession. Rappelez-vous, ensemble, nous sommes la voix de la profession juridique. Paul Sweeny, Evans Sweeny Bordin LLP

L'Association du Barreau de l'Ontario : Nous sommes responsables et démocratiques et représentons divers milieux; notre plus grande préoccupation est d'agir dans le plus grand intérêt de nos membres - avocats, juges, professeurs de droit et étudiants en droit.

Qu'y a-t-il à l'horizon? Qu'arrivera-t-il au cours de cette année? Le barreau revoit actuellement le processus de stage pour les étudiants en droit et des changements seront apportés. Une proposition de programme d'éducation juridique à l'intention de ceux qui n'on pas accès à un programme de stagiaire en droit pourrait se concrétiser.

Briefly Speaking • En Bref | February 2012

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Nota BenE

Nota Bene nota bene nota bene nota bene nota bene nota bene nota bene nota bene nota bene The Hon. Paul S. Crampton Appointed Chief Justice of the Federal Court

Three New Judges Appointed to the Ontario Court of Justice

On December 16, 2011 the Honourable Paul S. Crampton, a judge of the Federal Court, was appointed Chief Justice to replace the Honourable A.F. Lutfy who became a supernumerary judge on October 1, 2011.

Justice Robert Gee was called to the bar in 1992 and joined the law firm Jones, Rogers as an associate. In February 1995 he became an associate with Child, Chaimovitz, a criminal law practice in Hamilton. In 1996, he became a sole practitioner in family and criminal law and has practiced exclusively in criminal law since 1998. He has appeared on many bail hearings, criminal trials and summary conviction appeals. Chief Justice Annemarie E. Bonkalo has assigned Justice Gee to preside in Brantford.

Mr. Justice Crampton was first appointed a judge of the Federal Court in November 2009 and a member of the Competition Tribunal in March 2010. Prior to his appointment, he was a partner at Osler, Hoskin and Harcourt LLP (2004-2009) and head of the Outreach, Competition Division, Organization for Economic Cooperation and Development in Paris, France (2002-2004). He was a partner at Davies, Ward, Phillips and Vineberg (1992-2002) and an associate with Stikeman Elliott (1991-1992). He was special advisor to the Commissioner of Competition in Ottawa and executive assistant to the Senior Deputy Commissioner of Competition (1988-1989). His main areas of practice were competition law and foreign investment law. He received a combined Bachelor of Laws and Masters of Business Administration from the University of Ottawa in 1985 and a Masters of Law from the University of Toronto in 1987. He was admitted to the Bar of Ontario in 1988. 6

Justice Jeanine Elisabeth LeRoy was called to the bar in 1993 and has 18 years experience as a criminal defence lawyer. She practised criminal law at several firms in London until 2003 when she became a sole practitioner. Justice LeRoy co-founded One Good Turn: A Giving Circle, a non-profit organization that raises funds for youth in the London area and has been a mentor for the Criminal Law Intensive Program, University of Western Ontario Law School. Chief Justice Annemarie E. Bonkalo has assigned Justice LeRoy to preside in London. Justice Enno J. Meijers was called to the bar in 1990. From 1990 to 1999 he was an assistant Crown attorney in February 2012 | Briefly Speaking • En Bref


Nota BenE Welland and, since 2000, he has prosecuted in the Barrie courts. He has prosecuted charges at all levels of trial court and has been involved in complex homicide cases. He has been involved in the Simcoe County High School Mock Trial competition, sat on the board of directors for the Unity Christian High School in Barrie and is on the board of governors of Redeemer University College in Ancaster. Chief Justice Annemarie E. Bonkalo has assigned Justice Meijers to preside in Barrie.

Five New Judges Appointed to the Ontario Court of Justice

Justice Philip Anthony Downes was called to the bar in 1998 and that year he joined the Crown Law Office – Criminal at the Ministry of the Attorney General. As Crown Counsel, he conducted criminal appeals, including appearances before the Ontario Court of Appeal and the Supreme Court of Canada. He also conducted criminal trials in litigation in the Ontario Superior Court of Justice and the Ontario Court of Justice. In 2006, Justice Downes moved to private practice as an associate with Fenton, Smith Barristers. In 2008, he became a sole practitioner focused in the area of criminal and quasi-criminal law, as well as regulatory and professional discipline matters. Chief Justice Annemarie E. Bonkalo has assigned Justice Downes to preside in Toronto.

Justice Aston Joseph Hall was called to the bar in 1995. From 1995 to 2002, Justice Hall was a sole practitioner exclusively in the field of criminal law. He became a senior partner at Hall & Vaughan in 2002 and then opened his own law firm, Aston J. Hall and Associate, in 2009. Born and raised in Kingston, Jamaica, Justice Hall immigrated to Canada in 1983. He studied law at York University's Osgoode Hall Law School. There he was president of the Black Law Students Association and the Black Law Students' Association of Canada. In 2008, Justice Hall earned a Master of Laws degree focused on criminal law and procedure, also from Osgoode Hall Law School. Chief Justice Annemarie E. Bonkalo has assigned Justice Hall to preside in Toronto. Justice Jacqueline Loignon was called to the bar in 1994. Between 1995 and 1999, she was barrister and solicitor at the Regional Municipality of Ottawa-Carleton. She then practised law at Lang Michener LLP as an associate, where she was a member of both the Supreme Court of Canada and the litigation practice groups. From 2001 to 2006, Justice Loignon was counsel for the Ottawa Police Service, and she joined the Ministry of the Attorney General as an assistant Crown attorney in 2006. Chief Justice Annemarie E. Bonkalo has assigned Justice Loignon to preside in Ottawa. Briefly Speaking • En Bref | February 2012

Justice Joseph Gilbert Raoul Maille was called to the bar in 1984 and joined the firm Ramsay, Ramsay, Kemp and Andrew, later known as Kemp Maille. From 1995 to 2004, Justice Maille also acted as standing agent for the Attorney General of Canada in the District of Temiskaming. He also served as a deputy judge of the Small Claims Court from 1997 until he left private practice. Justice Maille joined the Ministry of the Attorney General as an assistant Crown attorney in 2008, working in Thunder Bay and then Haileybury. Chief Justice Annemarie E. Bonkalo has assigned Justice Maille to preside in a bilingual position in Haileybury.

Justice Heather Adair McArthur was called to the bar in 1994. Her practice focused on criminal trials and appeals, with a special emphasis on complex matters such as homicides. In 2008 she opened McArthur Barristers. She has appeared at all levels of court including the Supreme Court of Canada. She has published a number of legal articles and has been heavily involved in continuing legal education. Justice McArthur is active in her community as a member on the Board of Directors of College Montrose Children's Place. Chief Justice Annemarie E. Bonkalo has assigned Justice McArthur to preside in Toronto. 7


Nota BenE OBA Welcomes New Director Ed Borkowski has joined the OBA as the director of communications and marketing.

Ed is a dynamic leader with many years of strategic planning, communications and marketing experience in the corporate and not for profit sectors as well as in independent consulting roles.

Ed’s portfolio of experience includes strategic planning, brand development, team leadership, reputation management, media relations/crisis communication, governance and issues management, customer and internal communications, government, analyst and investor relations, event creation and organizational transformation. In consulting capacities Ed has provided advice and counsel to boards of directors, senior management teams and project leads.

Firms that refer traumatic and complex personal injury matters to Singer, Kwinter do so with confidence.

In the not-for-profit sector, as chair of the Board of Directors of Food Banks Canada, Ed led the transformation of the organization with a new vision, mission and strategic plan. He also led the organizations’ rebranding and restructuring of staff in the national office.

In his corporate role with Purolator, Ed successfully staged and delivered the bid for the Vancouver 2010 Olympic Winter Games to the International Olympic Committee in Switzerland.

Osgoode Hall Professor Will Run for Layton’s Seat

On January 9, 2012, respected law professor Craig Scott of Osgoode Hall Law School of York University, was elected by the NDP party to run for the federal Member of Parliament seat for the riding of Toronto-Danforth, the riding of the late Jack Layton. Professor Scott’s teaching and research have been primarily in the fields of public international law and private international law, with a focus on the place of international human rights law in both of these fields.

From 1989 to 2001 Professor Scott was a member of the University of Toronto Faculty of Law. He joined Osgoode Hall Law School in 2000.

The date of the Toronto-Danforth by-election is expected to be announced by Prime Minister Harper by February 22.

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February 2012 | Briefly Speaking • En Bref


The Lawyers in the Legislature Lorenzo Berardinetti

Greg Sorbara

MPP, Scarborough Southwest

MPP, Vaughan

Parliamentary Assistant to the Attorney General In October 2011 he was re-elected to represent his riding for the third time, and was appointed the new Parliamentary Assistant to the Attorney General. Lorenzo graduated from the University of Windsor Law School and was called to the Ontario Bar in 1988.

After graduation, he successfully ran for elected office in 1988 as city councilor for the former Scarborough City Council and was re-elected in 1991 and 1994. In 1997, when the City of Scarborough was amalgamated into the City of Toronto, Lorenzo was elected to the new City of Toronto Council and was re-elected in 2000. As a Toronto councillor, he made his mark as chair of the Administration Committee, which was given the difficult task of setting the blueprint for transforming six municipalities and one regional government into a single city.

Lorenzo served as the chair of the Standing Committee on Justice Policy in 2006, and previous to that was chair of the Standing Committee on Government Agencies, a member of the Cabinet Committee on Legislation and Regulation, was Deputy Whip and Parliamentary Assistant to the Minister of Labour.

In 2004, he became prominent for his Private Member’s Bill to outlaw “gender-based pricing,” which prohibited retailers from charging women more for goods and services compared to men.

Greg Sorbara holds a law degree from Osgoode Hall Law School. He was called to the bar in 1981 and practised with Stikeman Elliott LLP for several years before going into public service. First elected as a Member of Provincial Parliament in 1985, Greg has been successfully elected in every campaign in which he has been a candidate. A respected member of the Legislature, Greg has served in a number of senior cabinet positions, most recently as Ontario’s Minister of Finance. From 1995-2001, Greg returned to the private sector as a principal of the Sorbara Group, an Ontario-based land development and property management company. He also served as a director of the United Way of York Region and as a member of the board of the York University Alumni Association.

Greg returned to the public arena in November of 1999, when he was elected president of the Ontario Liberal Party, a position he held until 2004. In 2001 Sorbara was elected to the riding of Vaughan-King-Aurora, then re-elected in 2003 and went on to serve as Minister of Finance, Chair of the Treasury Board and Chair of the Management Board of Cabinet. He was elected again in 2007 and in 2011 to represent the riding of Vaughan. Greg is a devoted husband, father and grandfather.

He currently lives in Scarborough with his wife, Michelle, who is a Toronto City Councilor.

Briefly Speaking • En Bref | February 2012

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February 2012 | Briefly Speaking • En Bref


Unique Challenges of Representing Individuals with Serious Mental Health Issues Anita Szigeti and Ruby Dhand

Be Mindful of the Impact of any Legal Decision on the Person’s Liberty Interest Individuals with serious mental health issues are marginalized by society and exceedingly vulnerable during any contact with the law. Whenever a person with mental disorder faces legal proceedings, the potential consequences include a loss of liberty or autonomy.

In the civil context, the clients appear before the Consent and Capacity Board whenever they are subjected to involuntary detention in psychiatric hospitals or object to forced treatment with powerful psychiatric medications. In the Superior Courts, they struggle to maintain decisionmaking power in respect of their property or personal care. In the criminal courts, they assert either their fitness or take positions on whether or not they are criminally responsible for crimes they have committed.

We must give a voice to the concerns and objectives of clients with mental health issues in order to minimize the impact of the justice system on their life and liberty.

Before the Ontario Review Board, unfit and not criminally responsible accused face potentially indeterminate detention in a psychiatric facility or community supervision while under the Board’s jurisdiction. Because any and all of these types of proceedings engage Charter-protected liberty interests and the right to autonomy, security of the person and bodily integrity and because of the disability the client is experiencing, our professional obligations as Briefly Speaking • En Bref | February 2012

lawyers representing these clients are heightened. We must adhere to the highest standards of professionalism and ethical conduct; however, rising to this challenge can present a minefield of issues. We touch only upon the basics here. Be Mindful of Client Instructed Advocacy: Not (always) in Their Best Interest

During our representation of clients who are experiencing mental health issues, we often encounter tension between what the client instructs be done and where the client’s best interests would lie. In both the civil and criminal law context, our job is to advocate for the client according to his or her instructions rather than attempting to act in the client’s best interests. We must give a voice to the concerns and objectives of clients with mental health issues in order to minimize the impact of the justice system on their life and liberty. Although we all have our own personal beliefs as to what is in our client’s best interests clinically or therapeutically, we must strive to leave our biases and prejudices outside of the interaction with the client. Be Mindful of Existing Influences on the Client: Advance the Client’s Own Voice

Clients with mental health issues are often under enormous pressure from their family, treatment team, and service providers to adhere and “comply” with a specific medication regime and to stay in hospital. Often, we as lawyers are the first people to really listen to our clients and take their instructions. We cannot waiver from this approach. If we hear from family members who want us to sympathize with their position, we can certainly express our understanding of their frustration and concerns; but we must never forget who the client is. We must refrain from pass11


ing judgment on our client’s choices, however unreasonable we believe those choices might be. Be Mindful of Society’s (and Potentially Your Own) Inherent Prejudices

There are many stereotypes of the seriously mentally ill person embedded in society’s approach to people with mental health disabilities. In the media, mental illness is often linked to violence, sometimes it is thought to result in cognitive impairment, and many presume that symptomatic mental illness renders an individual incapable of meeting his or her basic daily needs. All of these prejudices and presumptions are false. Despite a diagnosis of a serious mental disability/disorder, the individual cannot and ought never to be presumed to be globally incapacitated or inherently dangerous. The person may well be capable to make his or her own decisions about a whole host of

Be Mindful of the Need to Provide Full and Fair Information: Set out All Options / Advice It is imperative that clients with serious mental health issues are given all their options, the potential consequences and implications of each option, and advised as to

In the media, mental illness is often linked to violence; sometimes it is thought to result in cognitive impairment, and many presume that symptomatic mental illness renders an individual incapable of meeting his or her basic daily needs. All of these prejudices and presumptions are false.

the most reasonable outcome, based on the circumstances. As counsel, our job when advocating for clients with mental health issues is to ensure that our advice is understood by, accessible and useful to them. Despite obvious manifestations of symptomatic mental disorder, it is helpful that in the civil context, the client is deemed to have capacity instruct counsel at least in proceedings of the Consent and Capacity Board. But even in circumstances where capacity to communicate with counsel is in issue, such as matters of fitness, our obligation to provide necessary information to which the client is entitled is not diminished. Arguably, in fact, it is enhanced. Be Mindful of Confidentiality, Privilege and Privacy Issues in the Hospital Setting

issues, including his or her own treatment of the mental disorder, managing her own property or financial affairs, making Powers of Attorney for Personal Care or Property, deciding who they want to represent them at hearings, and / or any combination of these things. The individual is presumed fit to stand trial in the criminal context, unless proven and found to be unfit. And just because an accused was suffering from mental disorder at the time of the commission of an offence, this in itself does not vitiate the individual’s mens rea or criminal responsibility for the criminal offence(s) committed. 12

Clients with serious mental health issues are no less entitled to rely on the protections of solicitor-client privilege—they must be given the benefit of total confidentiality of the information they impart to counsel. Counsel must be uniquely alive to this professional conduct rule in the context of representing hospitalized clients. It is important to bear in mind that everything we or our clients say will be charted in the client’s health record. We must therefore not engage in unauthorized conversations about our clients with staff, nor discuss anything with our clients within earshot of staff. We must, rather, insist on a private space to meet and privacy for telephone conversations with our client. This in itself can prove to be challenging at times. Be Mindful of the Client’s Socio-Economic Vulnerabilities and their Practical Reality

In our interactions, we will need to have empathy and a genuine sensitivity towards our client’s circumstances and February 2012 | Briefly Speaking • En Bref


his or her quality of life. Often, clients with mental health issues face poverty and may be without appropriate housing, employment and psycho-social support networks. For instance, we may find that clients with mental health issues may not be reachable by telephone – and have no fixed address – they may have to come in to your office on a regularly scheduled basis, simply so that you can provide them with information on their file. Be Mindful of the Impact of Active Symptoms of Mental Disorder: Accommodate It

In communicating with our clients, we have to remember that sometimes our voice is not the only one they are hearing. When our clients are experiencing such hallucinations, raising our voice just a touch, and speaking slowly and clearly is helpful. We may have to repeat our question or information on a number of occasions. All client meetings take longer if the client is in crisis. The client may not be able to tolerate the length of the interview, without breaks, and without a cigarette. Something like 95% of this clientele smoke.

Briefly Speaking • En Bref | February 2012

Representing individuals who have serious mental health issues presents unique challenges in accommodating the disability or condition and therefore the client while maintaining as ordinary a solicitor-client relationship as possible. The main emphasis must always remain on client-instructed advocacy despite family or other pressures on counsel retained by the person at the center of any legal controversy where mental disorder or capacity are in issue. Our clients deserve the best representation we can give them and our utmost professionalism. Our governing body expects no less of us nor should we settle for any less of ourselves. It’s an interesting and rewarding area of practice, but it’s also among the most challenging. Anita Szigeti is a partner in the Toronto law firm of Hiltz Szigeti LLP. Ruby Dhand is pursuing her doctorate in law at Osgoode Hall Law School. Ryby's research examines the intersecting inequities faced by ethno-racial people with mental health disabilities in the legal system.

13


Representing Substitute Decision Makers Edgar-Andre Montigny

A

s noted in Anita Szigetti and Ruby Dhand’s article in this issue, there are a number of serious issues to consider when representing an individual with mental health or capacity issues. Lawyers must also be alert to obligations they may have toward a person with capacity issues who is acting ‘against’ their client. One obvious situation where this obligation would apply is when a lawyer is representing or advising a substitute decision maker (SDM).

I define SDM as any person with legal authority to make particular types of decisions, such as decisions about personal care or property, on behalf of another person who has been declared incapable of making that specific type of decision (the incapable person). The most common types of SDMs are attorneys for property or personal care, statutory guardians for property or personal care, or court appointed guardians of property or the person. It is not difficult to imagine the types of disputes that could arise between an incapable person and the person making decisions on their behalf. Frequently the incapable person finds the restrictions and limitations of living with an SDM onerous and the SDM can easily become the target of their frustration. The SDM can create problems by exerting too much control, refusing to consult the incapable person, or refusing to share financial or other information. The SDM/incapable person relationship is often further complicated by the fact that SDMs are frequently also relatives, adding a complex family dynamic to the mix. If these SMD/incapable person disputes are not dealt with prop-

14

erly, they can lead to a breakdown of not only the SDM/ incapable person relationship, but also the family relationship, which may have serious long-term ramifications for both parties. In most case the incapable person has the most to lose. Given the vulnerable status of an incapable person, any lawyer, including those representing a SDM, have an obligation to consider how the advice they provide might impact upon the vulnerable incapable person.

Lawyers representing SDM’s must also realize that within the framework of SDM/incapable person relationship, as defined by the Substitute Decisions Act, 1992, the SDM has no rights to protect. SDM’s have only obligations toward the incapable person. It is the incapable person who has rights to enforce against the SDM. Lawyers representing a SDM therefore have a duty to remind the SDM of these obligations and must ensure that they do not encourage a SDM to take any action that would violate the rights of the incapable person or conflict with the obligaFebruary 2012 | Briefly Speaking • En Bref


tions the SDM has toward the incapable person.

In general, the obligations of a SDM can be summarized as the need to:

 exercise their powers diligently and in good faith for the incapable person’s benefit (s. 32. (1); s. 66. (1))

 explain to the incapable person what their powers and duties are (s. 32. (2), s. 66. (2)) 

encourage the incapable person to participate to the best of their abilities in the SDM’s decisions about property or personal care (s. 32. (3), s. 66. (5))

realize the goals and wishes of the incapable person to the extent possible (s. 66. (4)).

(8))

foster the incapable person’s independence (s. 66.

choose the least restrictive and intrusive course of action that is available and appropriate (s. 66. (9)).

To the extent that the dispute with the incapable person can be traced to the failure of the SDM to live up to one or more of these obligations, the SDM’s lawyer has a duty to encourage the SDM to co-operate with the incapable person’s attempts to protect their rights.

When an incapable person turns to a lawyer it is generally because attempts to resolve their dispute with the SDM informally have failed. At this point, the SDM can either agree to co-operate with the incapable person’s lawyer to help resolve the dispute, or they can seek legal counsel themselves. While there may be a wide range of reasons why a SDM would seek legal assistance when dealing with a conflict within the SDM/incapable person relationship, few turn to a lawyer because they want to co-operate. The four most common reasons SDMs turn to a lawyer appear to be:

obligations of a SDM. A Lawyer representing a SDM should explain that capacity is fluid and can change over time and encourage an SDM to at least consider the prospect that the incapable person may, in fact, be capable.

B) A closely related assumption SDMs often make is that an incapable person cannot instruct counsel and therefore no lawyer can act on their behalf; any lawyer who purports to represent an incapable person must simply be taking advantage of a vulnerable person for their own personal gain. Therefore, the SDM can simply ignore them. A lawyer representing a SDM must clarify that just because a person has been declared incapable of making personal care or financial decisions, does not mean they are incapable to instruct counsel. Individual lawyers must decide for themselves whether their client is capable to instruct them. Lawyers representing SDM’s also have a duty to inform the SDM that there are indeed many valid reasons for a lawyer to represent an incapable person and there are many perfectly competent and ethical lawyers defending the interests of incapable persons. A lawyer representing a SDM must make an effort to help the SDM understand that the incapable person may have legitimate concerns. It would be highly ethically questionable for a lawyer to allow a SDM to continue to dismiss any and all claims of the incapable person as rants prompted by an unscrupulous lawyer.

When dealing with individuals with capacity issues, lawyers cannot just proceed as they do with other clients. Matters involving a person with capacity issues can present unique practical and ethical challenges.

1) The SDM assumes there is absolutely no way the incapable person could ever be capable of contacting or instructing anybody, so any claims made on their behalf must be false.

C) The incapable person wants to engage in activities the SDM considers too risky. They cannot believe any reasonable person would argue that the incapable person should be allowed to take such risks.

This is problematic. A lawyer representing a SDM has a duty to remind the SDM of their obligation to promote the incapable person’s independence and autonomy. If a SDM has closed their mind to the possibility that the incapable person could ever be capable and refuses to support any attempts to promote or assess the incapable person’s capacity, they are obviously failing to carry out one the key

Although this conflict of opinion can arise in any SDM/incapable person relationship it is most common when the SDM is also a relative. In such cases a basic conflict can arise between a family member’s generally over-protective instincts and the duty of a SDM to promote autonomy and independence which can involve allowing the incapable person to take certain risks. Lawyers representing ‘family member

Briefly Speaking • En Bref | February 2012

15


SDMs’ must be extra vigilant to ensure that they are not inadvertently helping the SDM impose the degree of control they want to exert as a family member, rather than instructing the SDM to promote independence as they are required to. D) In some cases a SDM does not want the incapable person to ask questions or assert their capacity since they fear that their (the SDM’s) actions with respect to the incapable person’s property or living situation may not withstand the scrutiny of the court or the probing questions of the incapable person’s lawyer.

Of course no lawyer should help a SDM hide financial fraud or other improper behaviour. The lawyer has an obligation to remind the SDM of their fiduciary obligations and the need to account for their actions. In particular a lawyer should never help a SDM undermine an incapable person’s attempts to assert their capacity, and therefore keep the individual vulnerable, simply to protect a SDM from the

consequences of their improper actions. This would place the lawyer on ethical thin ice, to say the least.

When dealing with individuals with capacity issues, lawyers cannot just proceed as they do with other clients. Matters involving a person with capacity issues can present unique practical and ethical challenges. This is true whether a lawyer is representing the person with capacity issues or another party. While all lawyers have a duty to protect the interests of their client, ideally, rather than working as ‘opposing counsel’, lawyers representing incapable persons and lawyers representing SDMs or other involved parties should strive to work together to promote and protect the rights and autonomy interests of individuals with capacity issues. Ed Montigny, of ARCH Disability Law Centre, is a member of the OBA Equality Committee, chair of the OBA Administrative Law Section and a member of the CBA’s Legal Aid Liaison Committee and Sexual Orientation and Gender Identity Conference.

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Briefly Speaking • En Bref | February 2012

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17


Ontario CPD: One Year Later Sarah L. Boyd

December 2011 marked the end of the first year of the mandatory continuing professional development (CPD) requirement under the Law Society of Upper Canada’s new CPD regime.

This presents an opportunity to look back on this first year and consider if its detractors or proponents were right in their predictions. Overview of the Program

Most lawyers licensed by LSUC are now required to complete 12 hours of accredited “Eligible Education Activities” per year. Three of these hours (“professionalism hours”) must be in the areas of professional responsibility, ethics and/or practice management and must be accredited by the Law Society, while the remaining nine (“substantive hours”) need not be. New members, those in their first two years of practice, must meet a slightly different requirement for the 12 hours. All 12 hours must integrate topics related to professionalism and be accredited by the Law Society in order to be eligible for the new member CPD hours.

While the first type of CPD to jump to mind is programming, such as that offered by the CBA/OBA, LSUC, The Advocates’ Society, and other organizations and companies, there are other eligible activities. Various teaching and mentoring activities can count, as can some writing and participation in study groups. History of CPD

The requirement for CPD completion is included in LSUC By-Law 6.1, and is derived from a report to Convo18

cation made in February 2010. What is new in the CPD regime is the enforcement of specific requirements—the underlying need for lawyers to demonstrate ethical behavior, professional responsibility, proper practice management, and current knowledge of their craft have long been part of a lawyer’s duties. The Rules of Professional Conduct include these duties in the definition of competence (Rule 2.01) which includes, for example, “pursuing appropriate professional development to maintain and enhance legal knowledge and skills” and “adapting to changing professional requirements, standards, techniques, and practices”. In May 2009, the LSUC Treasurer advised Convocation that he had requested the Professional Development and Competence Committee to consider whether LSUC should introduce a CPD requirement. The Paralegal Standing Committee was also brought into the considerations. A Joint Report was made to Convocation in October 2009, and another in February 2010 making the recommendation of implementing mandatory CPD.

The issue of mandatory continuing professional development has been growing for years. Other professions are likewise engaged in the debate, some opting in and others opting out. For example, members of the College of Family Physicians of Canada and Fellows of the Royal College of Physicians and Surgeons of Canada have their own continuing medical education regimes; and opticians licensed with the College of Opticians of Ontario operate on a threeFebruary 2012 | Briefly Speaking • En Bref


year continuing education cycle, and other provinces opticians have their own regimes.

Mandatory continuing legal education (or MCLE) is also older than we think. In the US, it has been hotly debated at least since the 1970s, and the state bar association of Minnesota introduced it requirement in 1975. Forty-five states currently have MCLE requirements. Other Englishspeaking common-law jurisdictions, such as several Australian jurisdictions and parts of Britain, likewise have MCLE requirements. The benefits of continuing legal education are such that it is almost impossible to marshal an argument against it. Who can say that they don’t think lawyers need to have up-to-date knowledge and skills? The questions about mandatory CLE can therefore be broken down into three intertwined debates: 1) what needs to be taught; 2) whether it needs to be mandatory; and 3) how a mandatory system can best be implemented. What needs to be taught?

The last few years have seen a decided increase in the profession’s focus on professionalism. Rather than assuming that ethics are innate and that professional responsibility and practice management skills transfer to new lawyers by osmosis, there is an increasing acknowledgement that these areas need to be learned, and therefore need to be taught. Some substantive courses, such as civil procedure or legal research and writing, lend themselves to incorporating professionalism content throughout. Others, like criminal, immigration, or family law courses, can also adapt lessons and fact patterns which implicate professionalism. But as any law student can tell you, there’s always too much to learn. To ensure that professionalism doesn’t get left by the wayside, many law schools now offer professionalism courses, often mandatory. In 2008, the University of Toronto opened the Centre for the Legal Profession to coordinate the study, teaching, and practice of professionalism.

These law school courses have become a part of the curriculum recently, so in order to make sure that previous graduates have a good grounding in professionalism, and to keep it fresh in the minds of newer lawyers, CPD has to cover that area. Academics like Professor Adam Dodek of the University of Ottawa are enthusiastic about practising lawyers actively considering ethics, noting that CPD “has forced organizBriefly Speaking • En Bref | February 2012

ers to think about the ethical issues faced in their practice areas” (some 2012 courses include “Ethics in Negotiation”, “Ethical Issues in Using Social Media and E-Mail Communications”, “Ethical Red Flags for Real Estate Lawyers”, and “Ethics for Litigation Lawyers”). It’s not that practising lawyers don’t consider professionalism—entities like the Chief Justice of Ontario's Advisory Committee on Professionalism, created in September 2000, are evidence that some lawyers have always been interested in this area. But there is no doubt that it is a growing area of interest. The introduction of CPD is only one sign; consider also initiatives like the Chief Justice Fellowship in Legal Ethics and Professionalism, introduced in 2011, to which the OBA is a major contributor.

The October 2009 report noted a contradiction in the provision of professionalism CPD. On the one hand, most continuing legal education programs didn’t include professionalism topics, and programs devoted to professionalism topics were poorly subscribed. Conversely, a review of LAWPRO statistics and LSUC’s own complaints system showed quite clearly that when lawyers (and paralegals) had problems, it was almost always in the areas of ethics, professional responsibility, and practice management. Knowledge of substantive law was rarely the problem.

Traditionally LSUC had taken a reactive approach, through discipline. More recent programs like spot audits were somewhat preventative, in that they might prevent a complaint or a serious problem, but they could still only catch mistakes that were being made. Based on the perception that LSUC needed to become more proactive, and on the professionalism requirement included in the models from other jurisdictions, the recommendation of a 25% professionalism requirement was made. Why Mandatory?

While most lawyers take CPD whether or not it’s required, a small but concerning minority (18% in 2008) were not taking any formal CPD. Furthermore, as noted above, very few showed interest in professionalism CPD. There are legitimate arguments against CPD. One issue is that there is no empirical evidence that it results in fewer complaints or claims. Given that, isn’t there a concern that required programs will become a pro-forma exercise, which lawyers will tolerate for three hours a year but never really engage with? This is a real concern that has been

19


raised, successfully, as an argument against MCLE in some US states.

Professionalism specialist and Osgoode Hall Professor Trevor Farrow recognizes the danger, but believes it can be overcome. He believes that there is inherent value in professionalism programs and topics, and that CPD puts professionalism on the table in a way it hasn’t been before. Careful attention by the LSUC to what programs and activities it accredits with professionalism hours will help to ensure that no one is merely paying lip service to the issue. How should it be implemented?

At this point, CPD is a fact of life. The question becomes, how can it be implemented so that it is most effective? Effective implementation can overcome most of the other arguments against CPD, such as concerns about expense and accessibility. In its consultations, LSUC recognized the need for a broad variety of eligible activities. Accessibility

At the beginning of 2011, many of the programs offered were lengthy (and therefore expensive) programs that included as little as half a professionalism hour. These might be valuable substantive programs, of course, but the time and financial commitments to complete three professional hours could be daunting. Some practice areas had a wealth of programs with professionalism hours, but others were barely represented, leaving practitioners with the prospect of paying significant money to attend programs with no application to their practice, just to meet the minimum.

The need to attend programs outside ones practice area isn’t necessarily a bad thing, Professor Farrow points out. In fact, such cross-pollination might be a benefit, from time to time. But most practitioners would agree that most of their CPD should be useful in their work. Through the year, as program purveyors like LSUC, OBA/CBA and others adjusted to the new requirements, a greater variety of professionalism programs were offered. Other programs, already scheduled, were able to introduce professionalism content and become accredited. In the immigration practice area, for example, the OBA/CBA now regularly offers two-hour midday programs that are inexpensive, include lunch, and cover both substantive law as well as 1-2 professionalism hours, not to mention the chance to quiz government officials and tribunal members and network with colleagues: more or less the ideal situation for programming. Finally, low-cost or free programs, like the LSUC’s Commute to Court series, allowed lawyers on a budget to attend. Accessibility, of course, has to mean more than money. What about practitioners outside the major centres or with time constraints? To address their needs, CPD pro20

viders have for several years been using teleconference, videoconference, and web conference programs. These can provide the CPD hours. There are also options like watching archived CPD (with another lawyer), or participating in study groups, mentoring, teaching and writing. The scope of eligible activities is admirable and no doubt helpful in making sure that lawyers can get their hours.

Nevertheless, this is an area in which the implementation can be improved. The original requirement of applying a minimum 30 days in advance to get credit for an already-accredited archived program has thankfully been removed. Still, the advanced application requirement of 30 days, while no doubt justified in some cases, seems excessive in this age of instant electronic communication. Transparency

One of the major concerns expressed about CPD is that it is essentially a money grab. This can seem especially true when the accrediting organization (LSUC) is the same entity that offers much of the programming. In-House/Closed Programs

One area of programming that may or may not meet the accessibility and transparency threshold is in-house programming.

From the beginning, the recommendation was to include programs developed in-house, i.e. not open to the public, as eligible for CPD as long as they met other accreditation requirements. On the one hand, this is an affordable and convenient option for lawyers who work in large firms or for government agencies. On the other, this is another area where solo practitioners, smaller firms, and others not invited to these closed programs will miss out on the benefits of volume discounts and other perks of in-house programming. Does allowing in-house/closed programming threaten to stratify CPD? Again, Professor Farrow sees this as more of an opportunity for growth than a problem. He recognizes that the impact of requirements like MCLE is higher on small firm and solo practitioners, but as a solution he’d like to see firms open their programs to some non-employees. Most large firms already have a commitment to some level of pro-bono work and community service, and this would be an area where, with a little work, they could expand. The same is true of government entities like the federal Department of Justice or the Ministry of the Attorney General, who also offer in-house/closed programming. The other alternative is, of course, increasing membership in organizations, whether by region, practice area, or other interest. Some organizations like LSUC itself, the OBA/CBA, and the Toronto Lawyers' Association, offer programming to members and non-members alike, along

February 2012 | Briefly Speaking • En Bref


with other membership benefits. Others currently offer closed programs. Keeping Track

One of the hardest parts of the CPD requirement is simply keeping track of it. This is extremely important, given the possible penalties for failing to complete the necessary hours.

The LSUC’s online portal is the obvious response to the problem. While it had some quirks when it first went online, the portal has demonstrated increasing functionality, such as automatically entering the hours for accredited programs you have attended.

Campbell Valuation Partners Limited is pleased to announce that Kimberlie Jezior recently qualified as a Chartered Business Valuator (CBV), and Angela Ingram recently qualified as a Certified Management Accountant (CMA), and obtained her Masters degree in Business Administration (MBA).

Notification is another area where there will undoubtedly be improvements. How to notify (by mail? email?) and how often is the kind of issue that cannot be worked out accepted in practice. The first mail-out in the spring was more confusing than helpful since it came so early, but that’s the type of issue that will resolve by itself with little attention.

Kimberlie Jezior, CA·IFA, CBV, CFI, is also a CA-designated specialist in investigative and forensic accounting (CA•IFA), and a Certified Forensic Investigator (CFI). Kim is a Senior Director at CVPL and provides opinions on financial losses and irregularities, typically in the context of litigation. She has been qualified as an expert by the Provincial Court of Manitoba and the Ontario Superior Court of Justice.

As of the October 2011 update to Convocation, 15% of licensees still had not even registered for the portal. This is not a huge proportion on its own, but consider that this represented 15% of licensees who, as far as LSUC was concerned, hadn’t done any of their CPD hours. However, there was also a plan in place to continue notifying lawyers about the swiftly approaching deadline.

The portal also contains a listing of upcoming programs, but oddly, you cannot sign up (or even link to the sign up page) through the portal. These are the kind of bugs that LSUC will need to address, and will no doubt do so as we enter the second year of CPD. Results?

Since the introduction of MCLE, there has been an increase in registrants in programming. We may never see concrete “results” as to the usefulness and efficacy of CPD. As noted, studies of CPD in other jurisdictions failed to find clear statistical evidence that CPD led to, for instance, fewer claims or complaints. Undoubtedly the best evidence will be whether, after we’ve acclimatized to CPD and worked out the kinks in implements, whether we as a profession agree that mandatory professional development makes us better lawyers. Sarah L. Boyd is an associate with Jackman & Associates in Toronto.

Angela Ingram, MBA, CMA, previously obtained a Bachelor of Commerce Degree from Dalhousie University and is currently a finalist in the Chartered Business Valuator program. Angie is an Analyst with CVPL and focuses her practice on financial loss quantification and business valuation.

CVPL, founded in 1976, is Canada’s longest established independent consulting firm specializing in business valuation, damages quantification, and related litigation support services.

www.cvpl.com Briefly Speaking • En Bref | February 2012

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What a Nuisance:

T

he law of nuisance is a unique tort, as it is often defined as liability for an act that indirectly causes physical injury to land or substantial interference with the use or enjoyment of land or of an interest in land, where, in light of all the surrounding circumstances, the injury or interference is unreasonable. Since the cause of the tort is indirect, nuisance is fundamentally different from other torts.

Two recent decisions of the Court of Appeal address how nuisance law is to be interpreted in Ontario: Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), 2011 ONCA 419 and Smith v. Inco Limited, 2011 ONCA 628. The two opinions have a common judge, the Honourable Justice Doherty, (no relation) deliberating on both matters. While the two cases are factually quite different, the two opinions shared more than just a common judge, they brought into question how nuisance law in Ontario should be interpreted going forward. The fact that both nuisance claims failed may indicate a trend in the evolution of nuisance. The Court of Appeal addressed what has been a difficult area of law, where the application of the test for nuisance became increasingly murky with the passage of time. In particular, the Court in Inco noted that “[s]cholars and judges agree that the uncertain origins and the protean nature of the tort of private nuisance make it difficult to provide an exhaustive definition of the tort.”

The Court cited the Supreme Court’s statement on nuisance law in St. Pierre v. Ontario (Minister of Transportation and Communication), [1987] 1 S.C.R. 906, which states: while all nuisance is a tort against land predicated on an indirect interference with the plaintiff’s property rights, that interference can take two quite different forms. “Interference may be in the nature of “physical injury to land” or it may take the form of substantial interference with the plaintiff’s use or enjoyment of his or her land”, characterized as amenity nuisance. Antrim dealt with “amenity nuisance”, while Inco dealt with “physical injury to land”. 22

The Debate of Nuisance Law in Ontario By John Doherty and Roberto Aburto

Antrim was a claim under the Expropriations Act, R.R.O. 1990 c.E.26 that was commenced before the Ontario Municipal Board. Although no land was taken, the Claimant asserted that its property was injurious affected by the rerouting of Highway 417 near Ottawa, Ontario. While there are various nuances that arose in the case related to the injurious affection claim, the primary analysis of the Court of Appeal focused on the law of nuisance.

The Court of Appeal re-stated that a claim for amenity nuisance involves a basic two-step test: (1) there must be “substantial interference”; and (2) that interference must be unreasonable. In determining whether the interference is unreasonable, the Court must take into account 4 factors: 1.

the severity of the interference;

2.

the character of the neighbourhood;

3.

the utility of the Defendant’s conduct; and

4.

the sensitivity of the Plaintiff.

The Court held that in balancing the competing interests arising in the law of nuisance, substantial weight must be given to the utility of the conduct when the conduct relates to a public project. Applying that standard to the facts the Court overturned the original award, rejecting the claim. Notably however, the Court, unlike the Board, did not advert to the potential for alternative plan designs that February 2012 | Briefly Speaking • En Bref


sance. The Court in Inco pointed out that while in amenity nuisance cases, the analysis was predicated on a balancing of competing factors, where there is physical damage to land, “that damage is taken as an unreasonable interference without the balancing of competing factors.” The Court noted that there is “however, relatively recent dicta suggesting that there may be some role for the balancing of competing factors even where the nuisance takes the form of actual physical damage to land.”

preserved the existing access which may have influenced the Board to conclude that there were other ways to satisfy the public safety concerns while preserving the existing access. The Antrim decision leaves several points unanswered in balancing competing interests. In particular, it is unclear what steps must a property owner undertake or what evidence will be required to show that the utility of the public project is outweighed by the private interest which has been substantially interfered with? Public safety will always be a primary consideration in any road project, so how would that factor then be found to be outweighed by any private interest?

The Inco decision followed just a few months after Antrim. Inco involves a class action relating to nickel contamination in Port Colborne, Ontario, resulting from the Inco plant that operated from 1918 to 1984. The trial judge held that Inco was liable in private nuisance as well as under other environmental legal principles and awarded the Plaintiff $36 million. The nuisance claim centered on the impact that the levels of nickel in the soil and the associated public health concerns had on the values of properties in the area, particularly the properties alleged failure to increase in value at a rate similar to comparable properties. This finding was dismissed by the Court of Appeal.

The difficulty that sometimes arises in distinguishing between what constitutes amenity nuisance and nuisance based on physical damage to land suggests that a uniform approach to nuisance claims could provide greater consistency and clarity in nuisance claims. The Court did note that some factors would be balanced differently depending on the nature of the claim. However, the Court found that it “need not decide that issue.”

“We approach this ground of appeal on the basis that the claimants are correct in contending that competing factors cannot be balanced where the nuisance involves actual physical damage to the claimants’ lands.” Instead, the Court approached the appeal on the basis that competing factors need not be considered, and found on the facts of Inco, that there was no nuisance as “the claimants failed to establish actual, substantial, physical damage to their properties as a result of the nickel particles becoming part of the soil. Without actual, substantial, physical harm, the nuisance claim as framed by the claimants could not succeed.”

The Court of Appeal suggests that there is a high level of uncertainty related to nuisance claims. Further clarification, may come from the Supreme Court of Canada which at this writing has before it motions for leave to appeal in both cases. The Supreme Court may use this opportunity to provide more clarity in this often difficult area of real property law,particularly as to the whether a balancing test ought to be adopted in cases of physical injury to land. John Doherty and Roberto Aburto practise civil litigation, with a focus on commercial and municipal litigation, with Gowling Lafleur Henderson LLP in Waterloo.

In Antrim, the Court of Appeal pointed out that the Divisional Court had failed to apply the four factors for nuiBriefly Speaking • En Bref | February 2012

23


From Melbourne to Windsor Camille Cameron, University of Windsor’s New Law Dean J. Andrew Sprague

I

n the spring of 2011, the University of Windsor appointed Camille Cameron, from the University of Melbourne, Australia, as the incoming dean of its Faculty of Law. While the straight line distance between Windsor and Melbourne is approximately 16,000 km, the journey Cameron has taken from the beginning of her legal career in Halifax to her transition from Melbournian to Windsorite has been a much greater distance. Cameron’s five-year term as Windsor Law’s dean commenced on January 1, 2012. She is now tasked with picking up the role that was previously filled by Bruce Elman, who concluded his 11-year tenure in June 2011. After Elman’s departure and before Cameron’s arrival in Windsor, Myra Tawfik, a well-respected faculty member at Windsor Law since 1991, served as the school’s acting dean. A Dean with Global Experience

Cameron began teaching abroad in 1992, when she moved to China to be an associate professor at the City University of Hong Kong School of Law. In 2001 she moved to Australia, where she taught at University of Melbourne’s law school, then served as associate dean (undergraduate) from 2003-2005. She has also served as a visiting academic at the University of Oxford (2009), the Chinese University of Hong Kong (2006-09), and the Peoples’ and Beijing Universities (1995).

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Prior to leaving Canada in 1992, Cameron worked as a litigation lawyer with the law firm Stewart McKelvey Stirling Scales in Halifax, first as an associate lawyer (198287) and then as a partner (1988-92). While in Halifax, Cameron also served as a part-time lecturer at the Faculty of Law at Dalhousie University (1987-90). Originally from northern Nova Scotia, which, coincidentally, is the same place former dean Elman is originally from, Cameron completed her undergraduate studies at Saint Mary’s University in Halifax then went on to the University of New Brunswick to complete her LL.B. In 1992, she obtained her LL.M. from the University of Cambridge in England. Eighth Woman to be Appointed an Ontario Law Dean & Second Female Appointment for Windsor Law

Cameron is the eighth woman to be appointed a law dean in Ontario, excluding the three women who have served as either an acting dean or an interim dean. Since 1960, there have been 64 law deans in Ontario as well as 18 acting deans and interim deans.

With Cameron’s appointment, Windsor Law, which is the youngest law school in Ontario (at least until Lakehead University opens its Faculty of Law), becomes the first Ontario law school to have appointed two women to serve as its dean. February 2012 | Briefly Speaking • En Bref


Access to Justice In talking with Cameron, one gets the sense that being home on Canadian soil is comforting for her. While she really enjoyed her time in Australia and Asia, she “didn’t really enjoy being away from Canada.”

When asked why she moved from Nova Scotia to Asia nearly 20 years ago, Cameron describes her interest in following what was happening in Cambodia at the time: “After a very devastating civil war, they were trying to rebuild their legal system. A few years after I arrived in Hong Kong, I moved to and lived in Cambodia for several years where I worked with a human rights group that was involved with training lawyers and judges.”

In addition, while Cameron acknowledges that Windsor Law’s clinical programs are a strength of the school, she also concedes that there is room to improve. She is keen to build upon the current strengths of these programs and to look at ways to make the clinical programs “stronger and better.” Challenges Ahead

Like all law schools in Ontario, Windsor Law must address the challenges of maintaining excellent programs with limited financial resources. Cameron sees this not only as a challenge but also as an opportunity to work with colleagues, alumni and others to develop creative fundraising strategies.

At Windsor Law, access to justice is more than just a course; it’s a philosophy that permeates throughout the entire culture of the institution.

Cameron’s interest in, and passion for, the administration of and access to civil justice as well as dispute resolution, class actions, civil litigation, and court reform in transitional legal systems is clearly evident when speaking with her and in her publications and research. This will be an asset for both her and Windsor Law, which is distinctive among Canadian law schools for its commitment to access to justice. At Windsor Law, access to justice is more than just a course; it’s a philosophy that permeates throughout the entire culture of the institution. Cameron relishes the opportunity to further contribute. Location is Key

In her view, Windsor Law has considerable strengths and she wants to build upon those. For example, Cameron believes that Windsor Law’s research centres “present excellent opportunities for research collaborations,” and she wants to “use those research centres to capitalize on the faculty’s research strengths, to contribute to the research profile of the university and to do some innovative research.” Cameron sees Windsor Law’s geographical position with the United States, particularly with only the Detroit River separating Windsor from the City of Detroit (Detroit’s located on the north shore), as being a continued strength for Windsor Law, especially for, but not limited to, its Centre for Transnational Law and Justice (CTLJ) as well as its Intellectual Property Law Institute (IPLI). According to Cameron, “capitalizing on these geographical and transnational opportunities is an important part of Windsor Law’s mission.”

Briefly Speaking • En Bref | February 2012

In the fall, before she was dean, Cameron attended the reunion in Windsor for the Class of 1981 (which is coincidentally her year of graduation) to meet some of Windsor Law’s alumni. She was impressed with “how loyal they are to Windsor Law and how committed they remain thirty years after graduation.” Cameron was particularly impressed with the generosity of their $400,000 gift for a student scholarship. This gesture helped confirm for her that Windsor Law graduates can be relied upon to participate in and to support the law school in its ideas and projects. She is eager to build on existing alumni support and to reach out to more alumni. During her term, Cameron will also lead the school through the processes of addressing Windsor Law’s shortage of building space and developing an innovative, diverse, and challenging curriculum as part of the Windsor Law’s curriculum review process.

Camille Cameron’s professional research interests align very closely with the mandate of the school and its proactive pursuit of access to justice and transnational themes. Windsor Law will benefit from Cameron’s diverse and worldly experiences. J. Andrew Sprague is a lawyer with Miller Thomson LLP.

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Who Was Your Law School Dean? If you attended an Ontario law school since 1960, your law school dean is represented in the list below. Osgoode Hall Law 2010 –

Lorne Sossin

University of Toronto Law

2009 – 2010

Jinyan Li**

2003 – 2009

Patrick J. Monahan

1995 – 2005

Ronald J. Daniels

1998 – 2003

Peter W. Hogg

1990 – 1995

Robert Sharpe

1994 – 1999

Sanda Rodgers

1993 – 1998

Marilyn L. Pilkington

1984 – 1990

J. Robert S. Prichard

1987 – 1994

Donald McRae

1988 – 1993

James C. MacPherson

1979– 1983

Frank Iacobucci

1983 – 1987

Henry Albert Hubbard

1972– 1979

Martin Friedland

1983

1965 – 1972

Ronald St. John Macdonald

1949 – 1965

Cecil Wright

1987

John M. Evans*

1982 – 1987

John Douglas McCamus

1977 – 1982

Stanley Martin Beck

2006 –

Mayo Moran

Ottawa Law (Common) 2000 –

Bruce Feldthusen

Alfred William Rooke Carrothers

1973 – 1983

Henry Albert Hubbard

1962 – 1973

Thomas G. Feeney

1957 – 1962

Gérald Fauteux

1972 – 1977

Harry William Arthurs

1967 – 1972

Gerald Eric LeDain

1958 – 1966

Alan William Mewett*

* denotes Acting Dean

1958 – 1966

Herbert Allan Borden Leal

** denotes Interim Dean

Queen's University Law Ottawa Law (Civil) 2009 –

William F. Flanagan

Sébastien Grammond

2004 – 2005

Gary Trotter*

2004 – 2008

Nathalie Des Rosiers

1998 – 2004

Alison Harvison Young

1994 – 2004

Louis Perret

1993 – 1998

Donald D. Carter

Jean-Paul Lacasse**

1992 – 1993

Virginia Bartley*

1991 – 1994

André Braën

1987 – 1992

John Donaldson Whyte

1979 – 1991

Raymond Landry

1982 – 1987

Denis N. Magnusson

1977 – 1979

Gérald Beaudoin, c.r.

1977 – 1982

Bernard Leo Adell

1977 – 1982

Viateur Bergeron, c.r

1974 – 1977

Daniel A. Soberman

1969 – 1976

Gérald Beaudoin, c.r.

1973 – 1974

Lyman Robinson*

1968 – 1969

Gilles Pépin

1968 – 1973

Daniel A. Soberman

1967 – 1968

Raymond Landry

1958 – 1968

William Ralph Lederman

1965 – 1967

Germain Brière

1957 – 1958

James Alexander Corry*

1962 – 1965

Pierre Azard

1953 – 1962

Gérald Fauteux

1994

26

2005 –

February 2012 | Briefly Speaking • En Bref


Windsor Law 2012 –

Camille Cameron

2011

Myra Tawfik*

2000 – 2011

Bruce Elman

1999 – 2000

Brian Mazer*

1996 – 1999

Juanita Westmoreland Traore

1995 – 1996

Neil Gold*

1990 – 1995

Jeffrey Berryman

1985 – 1990

Neil Gold

1984 – 1985

Julio Menezes*

Taking part is easy:

1975 – 1984

Ron W. Ianni

You make all the difference.

1972 – 1975

John P. S. McLaren

1968 – 1972

Walter Tarnopolsky

1967 – 1968

Mark R. MacGuigan

Western Law 2011 – 2011

W. Iain Scott Richard McLaren**

2007 – 2011

Ian C. Holloway

2006 – 2007

Craig Brown*

2000 – 2006

Ian C. Holloway

1999 – 2000

Albert H. Oosterhoff*

1996 – 1999

Eileen E. Gillese

1995 – 1996

Sydney Usprich*

1989 – 1995

Peter P. Mercer

1984 – 1989

Wesley B. Rayner

1983 – 1984

Keith McNair*

1980 – 1983

Philip W. Slayton

1979 – 1980

Philip W. Slayton*

1974 – 1979

David Lloyd Johnston

1973 – 1974

Earl Edward Palmer*

1969 – 1973

Robert Simson Mackay

1964– 1969

Alfred William Rooke Carrothers

1959– 1964

Ivan Cleveland Rand

Briefly Speaking • En Bref | February 2012

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Reader Questionnaire Contest Winner We asked you to tell us what you want in an OBA magazine, and you did! 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. Congratulations to Geoffrey Marr, an associate in the Corporate Finance Group at Aird & Berlis LLP in Toronto, for winning the 2011 Briefly Speaking Reader Questionnaire Contest. Geoffrey was presented with an iPad 2 on January 16, 2012.

We’re on to something big

The new OBA magazine. Coming June 2012.

Briefly Speaking • En Bref | February 2012

29


Just For Laughs

Me, Me and

My RRSP Marcel Strigberger

F

or years I have been paying thousands into a self-directed Registered Retirement Savings Plan. And for years now (the same number actually), I have been trying to think of ingenious ways of withdrawing the money without paying tax.

Recently I bought a house and my accountant suggested that I could finally hit the fund, tax free, using it to finance the purchase. The catch was that I would have to replenish the kitty with a mortgage and pay back the money monthly. "Do you mean I would be both the mortgagor and mortgagee?" I asked my accountant. "Exactly. You pay the money to yourself. But it's an arm's length mortgage. You must pay it monthly, no matter what."

This was definitely win-win. I busted my RRSP and placed the mortgage on the house. I readily made the first couple of mortgage payments. After all, it was an arm’s length deal.

Unfortunately the conflict of wearing two hats soon surfaced. I received a whopping realty tax bill. "There's no way I'm paying this," I said to myself. I missed the due date and I felt good. It then hit me that the mortgage had a provision in it that if the mortgagor fails to make a tax payment, the mortgagee can pay it and add the tab to the mortgage debt. That didn't worry me. As mortgagee, however, there was no way I was going

30

to permit any compromise to my retirement next egg and I promptly made the payment. I then sent the mortgagor a letter as follows: Dear Mortgagor:

We have just paid the outstanding realty taxes that you were delinquent on. We trust that this was just an oversight. Please don't let it happen again or ac tion will be taken against you. Yours very truly, The Mortgagee

When I received the letter, I was furious. "Stuff it!" I exclaimed, tearing it to confetti.

A few weeks later there was a leak in my basement. Major work was necessary. But funds were tight. “No rush”, I thought. . As mortgagee, I just happened to peruse the mortgage and I noticed the provision whereby the mortgagee has a right to inspect the premises and he can compel the mortgagor to perform all necessary repairs. Quite by chance I decided to go down to the basement to check on my security and lo and behold, a flood.

"How did that irresponsible duffer allow it to go this far?" I bellowed. I called in a contractor immediately and tacked the bill onto the mortgage debt. "I'm going to have to inspect this February 2012 | Briefly Speaking • En Bref


Just For Laughs also include the sum of $500.00 for legal costs. Yours truly,

Marcel Strigberger

I got home from a hard day at the office and what do I see in my mailbox? A notice that there was a registered letter at the post office. Now who would be sending me a registered letter I wondered?

I attended at the post office and I noticed the envelope was from a law office. I read the letter and hit the roof. "Foreclose me will he? I slaved for years to buy this house to make a home for my family. Doesn't he care?" The postal clerk asked me if there was a problem with the letter and after explaining it all to her, she put on her hat and coat and charged out of the building.

place more often in view of the slob living here," I told my wife. For the next few months the debtor and creditor lived in harmony until one day I had bought a new car and I wanted to defer my mortgage payments for a bit. "The hell with that mortgagee," I said to myself. "What will he do if I don't pay? Exact a pound of flesh?"

It was mid-month and I was sitting at my office desk contemplating my fortune when I realized that I had not yet received my mortgage payment. I decided to call the mortgagor at home and guess what, there was no answer. I was convinced I was dealing with a deadbeat. Enough was enough. I decided to see a lawyer. It occurred to me however that since I was a lawyer myself, I could perhaps handle the matter in-house. I might have a fool for a client, but who's going to tell? I fired off the following letter. Dear Mr. Strigberger:

My client advises that once again you are in default. Monies now overdue must reach this office no later than 4pm this Friday, failing which foreclosure proceedings will be commenced. In addition you must Briefly Speaking • En Bref | February 2012

I was livid. I thought I had better see a lawyer. Which lawyer? I then thought to myself, "what the heck." I made a call and the assistant said that Mr. Strigberger could see me first thing tomorrow morning.

I got to the lawyer’s office at 8:30 the next morning. Unfortunately I had to wait a half hour, as the office did not open until 9:00. At 9:01 I charged right past the assistant into Strigberger's office and threw the letter on the desk. It was 9:02 when I was sitting behind my desk and noticed this very upset client barge into my office and throw a letter on my desk. I skimmed the letter and the urgency of the matter was apparent. I told the client to relax and assured him that I would help him. But business was business.

I came to the office for legal assistance and you won't believe this. Before taking on the case, Strigberger wanted a $1,000 retainer. He said something about it being novel. I stormed out of the office. "Let him foreclosure me all he wants." I said. I pondered the situation and realized that I would have the last laugh. I would vigorously defend any action brought and come trial time, I would make sure the mortgagee and his lawyer would never show up in court. Marcel Strigberger is a humourist trapped inside the body of a civil litigation lawyer – see legalhumour.com.

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5

 vidence Rules to Keep In E Mind Before a Civil Trial

Sam R. Sasso

Most civil litigators have heard — and likely repeated ­— that statistic of questionable origin and accuracy: More than 95% of all civil claims settle. Our careers are largely spent preparing for trials that do not happen. A hard-fought trial, which seems so likely the first day a client comes into the office, fades into compromise and minutes of settlement after years of examinations, motions and other practical hallmarks of our civil justice system. The commonality of settlement can lead to complacency on the part of the lawyer in preparing the case for trial.

Not all cases settle, but it is incumbent on the lawyer to prepare each case expecting it to go to trial. There is no end to the number of rules and practice tips which need to be considered when preparing for a trial, but here are five evidence rules to keep in mind to assist in being ready when a trial actually happens.

1.

Use a request to admit

Rule 51 of the Rules of Civil Procedure provides that a party may request the other party to admit the truth of a fact or the authenticity of a document. While an admission has particular relevance when it comes to evidence used at trial, rule 51 can be utilized “at any time” and must be responded to within 20 days. Requests to admit are underutilized, especially considering how effective they are. Requests to admit can reduce the amount of time required to prove facts and have documents admitted. Further, having the other side admit a particular fact strengthens your case. Including admitted facts in an opening can set the tone before any witnesses testify.

Lawyers commonly try to narrow the issues in dispute; a request to admit can reduce the facts in dispute. Before a court can make any findings regarding the issues, the court must first make findings of fact. A court will likely be appreciative of a lawyer who has attempted to narrow the 32

facts necessary for a decision and tried to obtain agreement in the most cost-effective way; conversely, the court will likely not appreciate counsel who refused to admit facts which should have been admitted and wasted the court's time to prove. A request to admit also helps a counsel prepare for trial because it requires the lawyer to itemize all the key facts that need to be proven. Not all key facts may be included in a request to admit (there are tactical considerations as well), but the lawyer will have considered everything needed.

2.

How to use business records

Business records can demonstrate to the court that your client conducted its business in an efficient and open manner in compliance with all statutory requirements and business practices. This increases the credibility of your client, which can help weather the storm of whatever issue needs to be tried. Notice of business records is governed by s. 35(3) of the Ontario Evidence Act and provides that 7 days notice must be given. However, even if insufficient notice of business records is given, the court can still admit the evidence if there is no prejudice to the opposite party.

To qualify as a business record, the submitting party must show that the record was created in the “usual and ordinary course of business.” Generally, two criteria are required: (1) the record must have been made in the usual course of business; and (2) it was in the usual course of business to make such writing. While s. 35 of the Ontario Evidence Act makes it easier for business records to be admissible, it does not assist in establishing the weight a trier of fact should give those business records, as stated by the Court of Appeal for OnFebruary 2012 | Briefly Speaking • En Bref


tario in Inno-Vite Incorporated v. De Wit Trading Co. Inc., 2008 ONCA 362 (Ont. C.A.) at para. 1: “The business records were properly admitted under s. 35 of the Evidence Act; their weight was for the trial judge.” [Emphasis added] Admitting business records pursuant to the rules can drastically reduce the amount of time your client has to deal with mundane technical issues while on the stand.

3.

Notice periods for experts' reports

Service of an expert’s report is governed by rule 53.03 of the Rules of Civil Procedure and provides that a party who intends to call an expert witness must serve a signed report by the expert not less than 90 days prior to the pretrial conference. If a party wishes to call an expert witness to respond to the report, that party must serve a signed expert report within 60 days prior to trial. If necessary, a court may grant leave to abridge the time for service of an expert report, as with other evidence, under rules 53.03(4) or 53.08.

From a practical standpoint, being able to serve an expert’s report in compliance with rule 53 means that a lawyer must have the report available sometime shortly after setting the matter down. The court usually requests that lawyers set a date for the pre-trial a couple of months after setting the matter down and pre-trials can happen within a couple of months after that. The ninety days before a pretrial can sneak up quickly after the matter is set down.

4.

How experts' reports have changed

Rule 53.03 and the corresponding form now require that an expert acknowledge that the expert’s duty to the court prevails over any duty to the party who retained the expert. The practical result of this requirement is that a court may encourage ­— especially in commercial list matters ­— that a single expert be used by both sides; this, however, is different than an expert being retained directly by the court as in rule 52.03. If an expert’s job is to provide expert assistance for the benefit of the court and the expert can have no prevailing duty to the retaining party, then why shouldn’t one expert be used? The answer to that question will invariably come down to whether one side thinks the use of one expert will end up costing them more in the long run, as in the case of competing valuations of a company, for example. However, the court is acutely aware of this tack by counsel and the use of more than one expert when one would have sufficed will be looked at with increasing cynicism.

Briefly Speaking • En Bref | February 2012

5.

Use rules forgiving non-compliance at your own risk (and credibility) There are several rules a lawyer can use to cure a default in compliance: expert’s report notice under 53.03(4), 52.10 failing to prove a fact or document, as just two examples. However, all of these rules not only require discretion, they require an analysis of the reasonableness of a lawyer's conduct. Immediately, the lawyer's credibility comes into question. This type of analysis does not advance a client's case; in fact, it just makes the case weaker.

A minor default is understandable, and is what these rules are meant to remedy: a reasonable oversight, an inability to comply, an unforeseen occurrence. These rules are not meant to act as a remedy for an unprepared lawyer; a court's patience will be tried by excessive and preventable requests for leave or forgiveness. Not only does the lawyer risk losing these requests on a particular case, the lawyer risks obtaining a reputation as someone unprepared and lacking credibility. Use of these rules deteriorates the confidence the court can have in your client’s case and the confidence the court can have in trusting the lawyer’s arguments. These rules should be used as a last resort, not as a matter of course. ___________

The rules discussed above deal with trying to save time (request to admit, using business records) and complying with deadlines (experts’ reports and admitting business records). Given the ever-increasing abundance of evidence available for each case, culling the evidence required and complying with deadlines isn’t just a matter of good practice, but demonstrates whether the lawyer will be able to mount a viable case. As trial lawyers, we should never lose sight of the fact that our duty is to tell our client’s story clearly and effectively. A court will appreciate the efforts of counsel, as described above, to make sense of the mass of evidence and focus in on key facts and documents. Conversely, the court will likely have little sympathy for, and will question the credibility of, a lawyer who is unprepared and must resort to asking leave to be able to argue the client’s case. Essentially, a lawyer chooses which of these two camps to be in during the planning stages of an action, not at the trial itself. A lawyer who is in the unprepared camp shortly before trial will invariably be more inclined to settle than one who is not. Sam Sasso is an associate with Ricketts, Harris LLP in Toronto. His practice focuses mainly on commercial litigation. Sasso has been involved in some of the largest directors and officers insurance cases as well as a number of significant shareholders dispute matters.

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Supreme Court of Canada Update

Summaries Eugene Meehan, Q.C.

T

he following is a summary of all appeals and all leaves to appeal. This summary covers October 12 to December 30, 2011. Supreme Court of Canada Update

APPEAL JUDGMENTS ABORIGINAL LAW: FISHING CLAIMS; FIDUCIARY DUTY Lax Kw'alaams Indian Band v. Canada (Attorney General) (B.C.C.A., Dec. 23, 2009) (33581) Nov. 10, 2011

To the limited extent that the Appellant traded in fish and fish products, such trade was specific to a product derived from a single species, the eulachon. Trade in fish generally was not integral to their distinctive society and did not provide a foundation for a s. 35(1) right to a modern wealth-generating "industrial" fishery. The conclusions of the B.C.C.A. were upheld on all issues. The trial judge found no express [emphasis in original] promise had been made of any preferential access to the commercial fishery. The arguments based on fiduciary duties or honour of the Crown failed in the absence of any substratum of relevant facts on which to base them. The claim to Aboriginal title 34

remains outstanding. In the meantime there is an Aboriginal fishing licence to take fish for food and ceremonial purposes. ADMINISTRATIVE LAW

Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association (Alta. C.A., Jan. 27, 2010) (33620) Dec. 14, 11

The decision of the adjudicator under the Alberta Personal Information Protection Act was subject to judicial review on a reasonableness standard, and her decision was reasonable. A court has discretion not to undertake judicial review of an issue and generally will not review an issue that could have been, but was not, raised before the tribunal. However, the Information and Privacy Commissioner has consistently expressed his views as to the timelines issue, in other cases, such that no evidence is required to further consider that issue, and no prejudice here was alleged. see page 36

February 2012 | Briefly Speaking • En Bref


Supreme Court of Canada Update ADMINISTRATIVE LAW: COSTS

CRIMINAL LAW: CHILD PORNOGRAPHY

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) (Fed. C.A., Oct. 26, 2009) (33507) Oct. 28, 2011

R. v. Katigbak (Ont. C.A., June 8, 2010) (33762) Oct. 20, 2011

The Canadian Human Rights Tribunal has no authority to make a costs award. ADMINISTRATIVE LAW: DUNSMUIR

Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) (33659) (NFLD & Lab. C.A., Feb. 19, 2010) Dec. 15, 2011 This case involved an arbitrator’s award with regard to the calculation of vacation benefits. On J.R., the reasons of the arbitrator were set aside, however the majority of the C.A. below agreed with the arbitrator, and the S.C.C. dismissed the appeal. Justice Abella wrote (in paragraphs 1, 25, and 26): “The transformative decision of this Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, explained that the purpose of reasons, when they are required, is to demonstrate ‘justification, transparency and intelligibility’. The issues in this appeal are whether the arbitrator’s reasons in this case satisfied these criteria and whether the reasons engaged procedural fairness. Arbitration allows the parties to the agreement to resolve disputes as quickly as possible knowing that there is the relieving prospect not of judicial review, but of negotiating a new collective agreement with different terms at the end of two or three years. This process would be paralyzed if arbitrators were expected to respond to every argument or line of possible analysis. In this case, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes.” ADMINISTRATIVE LAW: W.C.B.; JUDICIAL REVIEW; CONCURRENT JURISDICTION; STANDARD OF REVIEW; COLLATERAL ATTACKS

British Columbia (Workers' Compensation Board) v. Figliola (B.C.C.A., Feb. 17, 2010) (33648) Oct. 27, 2011

A W.C.B. appeal cannot be indirectly appealed to/heard by a Human Rights Tribunal. The standard of review is patent unreasonableness. CONSTITUTIONAL LAW: DIVISION OF POWERS (SECURITIES REFERENCE) Reference: re Securities Act (33718) Dec. 22, 2011

The proposed Securities Act as presently drafted is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867. 36

The trial judge below made two errors of law requiring a new trial: •

by finding that the pornographic material fell within the scope of the pre-2005 artistic merit defence on the ground that the accused possessed the material for an artistic purpose, notwithstanding the fact that the material itself had no artistic merit and was not created for one of the enumerated purposes her interpretation of the phrase "legitimate purpose" in the current version of s. 163.1(6) by inquiring solely into the accused's subjective purpose for possessing the material.

CRIMINAL LAW: INFORMER PRIVILEGE

R. v. Barros (Alta. C.A., April 15, 2010) (33727) Oct. 26, 2011 The S.C.C. held: • • • • •

an accused is not restricted by the narrow parameters of the "innocence at stake" exception it is not the case that all attempts by an accused to identify a confidential informer are constitutionally protected

what is constitutionally protected is the s. 7 right to make full answer and defence not all attempts to identify an informant will be linked to this right it will depend on the circumstances.

CRIMINAL: INTOXICATION; INSANITY

R. v. Bouchard-Lebrun (Que. C.A., March 3, 2010) (33687) Nov. 30, 2011 The S.C.C. held: •

courts must consider the specific principles that govern the insanity defence in order to determine whether s.16 of the Criminal Code is applicable; if that defence does not apply, the court can then consider whether the defence of self induced intoxication under s. 33.1 is applicable if it is appropriate to do so on the facts of the case; intoxication and insanity are two distinct legal concepts February 2012 | Briefly Speaking • En Bref


Supreme Court of Canada Update •

an accused who wishes to successfully raise the insanity defence must meet the requirements of a two stage statutory test: characterizing the mental state of the accused; the effects of the mental disorder.

CRIMINAL LAW: MURDER; ATTEMPTED MURDER; INCLUDED OFFENCES; CURATIVE PROVISO

ousness of the offence had been held not to be a determinative factor also erred in placing undue weight on the "discoverability" of the evidence in its s. 24(2) analysis.

R. v. Sarrazin (Ont. C.A., Sept. 9, 2010) (33917) Nov. 4, 2011

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. J.M.H. (Ont. C.A., Nov. 26, 2009) (33667) Oct. 6, 2011

The S.C.C. held:

• •

attempted murder is an included offence, quoting the C.A. below: "[t]he community as a whole and the participants in a criminal proceeding, be they accused, witness, juror, or investigator, are best served by a process that allows all issues to be resolved in a single trial" the potential verdict of attempted murder should have been left with the jury and it was an error of law not to do so

with regard to the curative proviso: retrials will often impose a serious burden both on the witnesses and the public purse, as well as the courts generally, and the outcome of a retrial will often be the same as the original trial; but the burden on the Crown to avoid a retrial should not be watered down; the burden to demonstrate an "overwhelming" case or a "harmless" error of law should not be relaxed.

CRIMINAL LAW: SEARCH & SEIZURE; EXCLUSION OF EVIDENCE; CHARTER S.24(2)

R. v. Côté (Que. C.A., February 18, 2010) (33645) Oct. 14, 2011 The trial judge's decision to exclude observations made by police at the accused's home and the physical evidence collected pursuant to the warrants was owed deference. The C.A.: •

misconceived of its appellate role when it substituted its view of the police conduct for the trial judge's and when it placed undue emphasis on the seriousness of the offence

holding that the police had not deliberately acted in an abusive manner was contrary to the trial judge's numerous findings of deliberate and systematic police misconduct

emphasis on the seriousness of the offence was also misplaced given that the trial judge had acknowledged that the offence was serious and that the seri-

Briefly Speaking • En Bref | February 2012

The trial judge, did not in fact, fail to consider the whole of the evidence, as the C.A. 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 S.C.C. 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.

DEFAMATION: INTERNET HYPERLINKS

Crookes v. Newton (B.C.C.A., Sept.15, 2009) (33412) Oct. 19, 2011 A simple reference - like a hyperlink - to defamatory information is not the type of act that can constitute publication. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be "published" by the hyperlinker. FAMILY LAW: SUPPORT VARIATION

L.M.P. v. L.S (Que. C.A., April 21, 2010) (33749) Dec. 21, 2011

In the particular circumstances of this case an application by the husband to subsequently vary a comprehensive separation agreement with regard to spousal support was ultimately dismissed. 37


Supreme Court of Canada Update FAMILY LAW: SUPPORT VARIATION R.P. v. R.C. (Que. C.A., March 12, 2010) (33698) Dec. 21, 2011

In the particular circumstances of this case an application to terminate spousal support by the husband was ultimately dismissed. LABOUR LAW: GRIEVANCES

Where there is a conflict between provincial and federal statutory provisions, s. 144 of the Quebec Act respecting industrial accidents and occupational diseases is inoperative in relation to the requirements to pay issued under s. 126(4) of the federal Employment Insurance Act.

Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals (33795) (Man. C.A., May 18, 2010) Dec. 2, 2011

LEAVES TO APPEAL GRANTED

What is the standard of review with regard to the Public Service Staffing Tribunal with regard to an alleged “abuse of authority”?

The S.C.C. held:

as a general rule, reasonableness is the standard of review governing arbitral awards under a collective agreement

the equitable remedy of estoppel imposed here by the arbitrator does not involve a question of central importance to the legal system as a whole that was beyond the expertise of the arbitrator; it therefore cannot be said to fall within that established category of question ― nor any other ― subject to review for correctness a contextual analysis confirms that reasonableness, not correctness, is the appropriate standard of review.

TAX: GENERAL ANTI-AVOIDANCE RULE

Copthorne Holdings Ltd. v. Canada (Fed. C.A., May 21, 2009) (33283) Dec. 16, 2011 The S.C.C. held: •

• • •

three questions be decided: (1) was there a tax benefit; (2) was the transaction giving rise to the tax benefit an avoidance transaction; and (3) was the avoidance transaction abusive

the burden is on the taxpayer to refute the Minister’s assumption of the existence of a tax benefit

where a Tax Court judge has made a finding of fact on the existence of a tax benefit, a reviewing court can only overturn where palpable and overriding error the existence of a tax benefit can be established by comparing the taxpayer’s situation with an alternative arrangement that could reasonably have been carried out but for the existence of the tax benefit.

WORKER’S COMPENSATION IN QUEBEC

Quebec (Attorney General) v. Canada (Human Resources

38

and Social Development) (Que. C.A., Nov. 18, 2009) (33511) Dec. 8, 2011

ADMINISTRATIVE LAW: STANDARD OF REVIEW

A.G. v. Robert Kane (Fed C.A., Jan. 19, 2011) (34147) Dec. 1, 2011 BANKRUPTCY AND INSOLVENCY: PENSIONS

Does a provincial Pensions Act create a deemed trust for a pension plan wind-up deficiency, and if so, does this prevail over a court ordered super-priority given to debtor-inpossession lenders? Sun Indalex Finance, LLC et al. v. United Steelworkers et al. (Ont. C.A., April 7, 2011) (34308) Dec. 1, 2011 CLASS ACTIONS: CERTIFICATION

There is a sealing order in this case, where the passingon defence, who is an “indirect purchaser”, intentional interference with economic interests, and Competition Act damages, are issues. Pro Sys Consultants Ltd., Neil Godfrey v. Microsoft Corporation, Microsoft Canada Co./Microsoft Canada CIE (B.C.C.A., April 15, 2011) (34282) Dec. 1, 2011 CLASS ACTIONS: CERTIFICATION

Similar summary to that above, except no sealing order.

Sun-Rype Products Ltd. et al. v. Archer Daniels Midland Company et al. (B.C.C.A., April 15, 2011) (34283) Dec. 1, 2011 CONTRACTS IN QUEBEC: RECTIFICATION

Can Quebec courts rectify a contract where the intention stated in the contract differs from the common intention of the parties? Agence du revenu du Québec v. Canada Customs and Revenue Agency, Jean Riopel, Christiane Archambault, Entreprise J.P.F. Riopel inc. (Que. C.A., May 20, 2011) (34393) Dec. 15, 2011 February 2012 | Briefly Speaking • En Bref


Supreme Court of Canada Update CRIMINAL LAW: ACCESSORIES What additional instructions, if any, should be given to a jury concerning the “knowledge” element of being an accessory (here, to murder)? Pierre Lévesque v. Her Majesty the Queen (Que. C.A., June 7, 2011) (34417) Dec. 15, 2011 CRIMINAL LAW: CONSPIRACY TO COMMIT MURDER

There is a publication ban in this case, and the court file contains information not available for inspection by the public, in the context of an alleged conspiracy to murder a parent.

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J.F. v. Her Majesty the Queen (Ont. C.A., April 6, 2011) (34284) Oct. 20, 2011 CRIMINAL LAW: DISPOSAL OF DEAD BODY OF A CHILD

Is s.243 of the Criminal Code, an offence to dispose of the dead body of a child with intent to conceal the fact that its mother has been delivered of it, constitutionally vague? Ivana Levkovic v. Her Majesty the Queen (Ont. C.A., Dec. 7, 2010) (34229) Oct. 20, 2011

agmlawyers.com Affleck Greene McMurtry LLP 365 Bay Street, Suite 200, Toronto, Canada M5H 2V1 T 416.360.2800 F 416.360.5960 Excellence in Commercial Litigation and Competition Law

CRIMINAL LAW: DURESS

There is a publication ban and sealing order in the context of duress re counselling to commit murder. Her Majesty the Queen v. N.P.R. (N.S. C.A., March 29, 2011) (34272) Oct. 20, 2011 CRIMINAL LAW: JURY VETTING

There is a publication ban in this case with regard to the alleged practice of Crown jury vetting. T.C.D. v. Her Majesty the Queen (Ont. C.A., Oct. 5, 2010) (34340) Nov. 17, 2011 CRIMINAL LAW: SEARCH & SEIZURE

There is a publication ban in this case in the context of a teacher accessing student email.

Her Majesty the Queen v. R.C. (Ont. C.A., March 22, 2011) (34268) Oct. 20, 2011 CRIMINAL LAW: TEXT MESSAGING DISCLOSURE

In what circumstances, and by what authority, do text messages have to be disclosed to police?

Telus Communications Company v. Her Majesty the Queen (Ont. S.C.J., March 4, 2011) (34252) Oct. 20, 2011

Briefly Speaking • En Bref | February 2012

CRIMINAL LAW: UNLAWFULLY ABANDONING A CHILD There is a publication ban in this case in the context of a baby born then left in a shopping centre washroom. Her Majesty the Queen v. A.D.H. (Sask. C.A., Jan. 12, 2011) (34132) Oct. 20, 2011 DEFAMATION: FAKE INTERNET PROFILES

There is a publication in this case as to disclosure of IP addresses to perpetrate alleged defamation.

A.B. by her Litigation Guardian, C.D. v. Bragg Communications Incorporated, a body corporate, The Halifax Herald Limited, a body corporate and Global Television (N.S. C.A., June 25, 2010) (34240) Oct. 13, 2011 ELECTIONS: EXPENSES

In what circumstances can the Chief Electoral Officer refuse to certify claimed expenses for reimbursement. ?

L.G. (Gerry) Callaghan, in his capacity as official agent for Robert Campbell, David Pallett, in his capacity as official agent for Dan Mailer v. Chief Electoral Officer of Canada (Fed. C.A., February 28, 2011) (34232) Oct. 20, 2011 39


Supreme Court of Canada Update HEALTH LAW: WITHDRAWAL OF LIFE SUPPORT In what legal circumstances can there be a withdrawal of life support?

Brian Cuthbertson, Gordon Rubenfeld v. Hassan Rasouli by his Litigation Guardian and Substitute Decision Maker, Parichehr Salasel and Consent and Capacity Board (Ont. C.A., June 29, 2011) (34362) (Dec. 22, 2011) IMMIGRATION LAW: INADMISSABILITY AND REMOVAL

In what circumstances can there be judicial review of a decision by the Minister of Immigration under s. 34(2) of the Immigration and Refugee Protection Act? Muhsen Ahemed Ramadan Agraira v. Minister of Public Safety and Emergency Preparedness (Fed. C.A., March 17, 2011) (34258) Dec. 8, 2011

word, without attribution, significant portions of the Appellant’s closing submissions?

Eric Victor Cojocaru, an infant by his Guardian Ad Litem, et al. v. British Columbia Women's Hospital and Health Center et al. (B.C.C.A., April 14, 2011) (34304) Nov. 24, 2011 TORTS: MVA'S; JURY DIRECTION

Were certain references by the trial judge relating to the pedestrian and vehicle rights of way in s. 125 of the N.S. Motor Vehicle Act a misdirection constituting a reversible error of law?

Annapolis County District School Board, Douglas Ernest Feener v. Johnathan Lee Marshall, represented by his Guardian, Vaughan Caldwell (N.S. C.A., Feb. 4, 2011) (34189) Oct. 13, 2011

MED-MAL: JUDGES' REASONS

The Applicant suffered brain damage during his birth in hospital. An action was commenced against the hospital and its employees. Damages of $4 million were awarded. In his reasons, the trial judge copied almost word-for-

26 Briefly Speaking (Multi-tool)

12/18/08

2:51 PM

Eugene Meehan, QC, is a founding partner of Supreme Advocacy LLP. emeehan@supremeadvocacy.ca

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February 2012 | Briefly Speaking • En Bref


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Accessibility for Ontarians 

What Does it Mean for Lawyers? By Andrew Pinto, Patrick James, and Christian Vernon

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awyers need to be at the forefront of advances in the law of disability accommodation and accessibility. However, not all lawyers are fully aware of their legal obligations to accommodate persons with disabilities. Beyond being advocates and trusted advisors, we are also employers and service providers to the public. In these capacities, it is important that we know and understand our obligations to ensure that the vital legal services we provide are accessible to all. The coming into force of the regulations under the Accessibility for Ontarians with Disabilities Act (AODA) provides a great opportunity for Ontario lawyers to demonstrate our profession’s leadership role in making legal services fully accessible. The following is a brief synopsis of our AODA obligations and what AODA compliance means for lawyers as employers and service providers. The Customer Service Standard under the AODA came into force in the private sector on January 1, 2012, and as such all lawyers in private practice in Ontario are required to be compliant with the Act.

The AODA applies to both the public and private sectors, and therefore applies to private practice lawyers in their capacities as service providers and employers. The purpose of the legislation is to eliminate barriers that may keep someone with a disability from participating fully in society. For lawyers, that would mean any barrier that may keep someone from accessing legal services, or from working for the lawyer.

Barriers to people with disabilities are defined broadly under the AODA, and include attitudinal barriers, visible barriers and invisible barriers. Disability is defined broadly in the AODA using the same definition of disability found in the Ontario Human Rights Code. 42

Part of the impetus behind the AODA is a recognition that we live in an aging society, and that over the next 20 years, the proportion of Ontarians with one or more disabilities will rise from 1 in 7 to 1 in 5. The accessibility standards under the AODA are designed to get us ready for a world in which an increasing percentage of the people we serve and employ have disabilities. The AODA itself does not contain accessibility standards. Rather these standards are contained in regulations made under the AODA. There are five such standards, each one for a different area of daily living: •

customer service

transportation

• • •

employment

information and communications buildings and built environment

For most lawyers, the customer service and employment standards are going to be the most relevant of the five standards. What do Lawyers Need to Do to Comply with the AODA Customer Service Standard?

Your law firm or legal practice may have a website, phone number, email server and a variety of other ways of communicating your services to the public. However, most firms will not have large print websites, familiarity with the TTY-TDD phone service, text-to-voice software, and other tools or assistive devices to ensure persons with disabilities can learn about your firm and effectively communicate with you once they become clients. It is a requirement of the AODA Customer Service Standard for private-sector service providers to be in compliance with the accessibility standards. Lwyers need to create a Customer Service Standard customized for their firm or their legal practice. Depending February 2012 | Briefly Speaking • En Bref


on the size of your firm, the obligations may be different. Some of the key areas that law firms and legal practices must address are the following: •

policies, practices, and procedures

communication

• • • • • • •

training

feedback process service animals

support persons

notice of temporary disruption of service

documenting compliance with the regulation (for organizations with 20 + employees) reporting requirements (for organizations with 20 + employees)

In terms of policies, practices, and procedures, lawyers should prepare some written policy documents setting out how the lawyer and his or her staff will comply with the requirements. This means writing out what reasonable efforts are being taken to ensure that the methods of providing services to persons with disabilities are consistent with the principles of dignity and independence, integration with other people, and provide an equal opportunity to obtain, use, and benefit from the lawyer’s services. The policies themselves should be available in accessible formats, as should any documents that the practice routinely provides to clients, such as retainer agreements and bills. To learn more about compliance with the Customer Service Standard, you may wish to refer to the Law Society of Upper Canada’s Guide to Developing a Customer Service Accessibility Policy, which is available on its website. With regard to employee training, lawyers and law firms should review the purposes of the AODA and the requirements of the Customer Service Standard with all employees. Employees should be trained on how to interact with persons with disabilities, specifically with people who use assistive devices, have service animals, or who engage a support person. Employees should be trained to use the most commonly encountered assistive devices that may be provided by the lawyer or law firm, such as text-to-voice software and optical character recognition software. Employees should also receive training on how to handle the disability accommodation request for which there is no specific plan or organizational experience.

For law firms with 20 or more employees, there is a requirement to prepare a document detailing the training that is provided and making a record confirming that training has been delivered, how often, and what feedback was received. Of course, an important aspect of any train-

Briefly Speaking • En Bref | February 2012

ing program is reviewing the law firm’s own policies on disability accommodation to ensure that they are complaint with the AODA and the Human Rights Code, and to ensure that all employees understand these policies. Lawyers and Law Firms as Employers

The AODA contains an employment standard, which is now part of what is called the “Integrated Accessibility Standard” which involves accessibility in employment, as well as transportation, information and communications. The Integrated Accessibility Standard as a whole comes into effect on July 1, 2012, but the various requirements under the Standard become applicable to different sectors on different dates. With the exception of the workplace emergency provisions which come into effect immediately, large law firms with 50 or more employees must be compliant by January 1, 2016 and small law firms with less than 50 employees must be compliant by January 1, 2017. It is worth noting that all law firms, in their capacities as employers and service providers, already have an obligation to accommodate persons with disabilities under the Ontario Human Rights Code. Penalties The AODA has stiff penalties for those who are found not to be compliant with its requirements. It does not contain an individual complaint or dispute mechanism, but is instead more akin to the Occupational Health and Safety Act in that it contemplates government investigation and fines for non-compliance. The maximum fines set out in the Act are $50,000 per day for individuals, $100,000 per day for corporations; $50,000 per day for corporate directors. The Bottom Line

Compliance with the AODA’s Customer Service Standard should be relatively easy for most lawyers and law firms, so there is no excuse not to become compliant as soon as possible. At the same time, it is important to note that this is not simply an exercise in drafting policies and letting them collect dust in a filing cabinet. To make the most of this opportunity to treat people with disabilities with the respect and dignity they deserve, and to properly comply with the Act, ongoing training will be required. As lawyers, we should seize the opportunity to demonstrate to the public we serve that we are leaders in making public services, including our own legal services, fully accessible. Andrew Pinto, Patrick James, and Christian Vernon, Pinto Wray James LLP.

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CBA National News

Law Day 2012 April 17, 2012, will mark both Law Day and the 30th anniversary of the Canadian Charter of Rights and Freedoms. On and around that day, lawyers and judges will participate in programs for elementary and high school students, families, and the general public to explain the workings of the law and legal systems in Canada. Numerous activities will have a special focus on the Charter and its importance. National Law Day Chair Karlee Blatz of Winnipeg says planning for Law Day 2012 is off to a good start. “We held our first call of the national committee in November and the scope of activities in the works is most impressive.” Planned activities across the country include lectures on the law, mock trials, courthouse tours, fun runs, open citizenship courts, and poster, photography and public speaking contests. “In the GTA and Southern Ontario, we’ll be celebrating Law Day from April 16 to April 20,” says OBA Law Day Chair Shelley Timms of Toronto. “Events to be held that week include a mock trial tournament, debates, a photography contest, and a closing ceremony and awards presentation.” In Ottawa, courthouse tours, a

44

career panel, and a mock trial are planned for April 17, with a 5K fun run taking place April 27. In addition to the CBA’s Law Day activities, a group of University of Windsor law students have launched the Charter Project in honour of the Charter’s 30th anniver-

February 2012 | Briefly Speaking • En Bref


sary. The project’s objective is to increase awareness and understanding of the Charter through education. “They are offering online video content and educational workshops aimed at high school students,” explains Blatz. Byron Pascoe and Jennifer Graham of the University of Windsor described the online character of their initiative. Currently, it contains videos of legal pioneers and celebrities including Frank Iacobucci, Howie Mandel, and Rick Hansen, to name a few, describing what the Charter means to them. On the education side, online programs will offer basic information about rights and responsibilities under the Charter. “Law Day organizers are hoping to make use of the materials developed by the Charter Project in conjunction with high school mock trials and debates,” says Blatz. Law Day is organized by the CBA. Volunteer committees in CBA Branches are in place. For information on volunteer opportunities, please contact the OBA’s

Filippo Conte at fconte@oba.org. Law Day http://www.cba.org/CBA/LawDay/main/

2012 MID-WINTER MEETING – Register now for Mayakoba, Feb. 10-12!

resolutions dealing with current legal issues, public policy, and governance. The program is designed to be conducive to business, networking, and R&R. If you’re not a Council member, you are invited to attend and should seek appointment as an alternate Council member from your Branch in order to vote. Details on registration, conference hotel rates and travel discounts are available online at: www.cba.org/ Mayakoba2012

Diversity strategy for firms The increasing diversity of the Canadian labour force and Canadian law school graduates means that law firm managers need to have a solid understanding of diversity management to be successful talent managers. Ongoing assessment of your firm's current diversity performance is key. The CBA’s Equality Committee has produced a draft guide, Measuring Diversity in Law Firms: A Critical Tool for Achieving High Performance, that provides background information on current law firm realities, the role that diversity plays in organizational performance, and the impact of different approaches to diversity management. The guide also describes measurement strategies and the major steps involved in measuring diversity. The guide is available on the CBA website at www. cba.org/cba/Equity/main/diversity-guide.aspx (with member number).

This February, your input will help shape the future of the CBA. At Sections and Conferences meetings, you will have an opportunity to provide feedback on proposals for a new member fee structure. At Council, consultations will begin on the future of the Canadian Legal Conference. The Council agenda also includes

Briefly Speaking • En Bref | February 2012

45


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February 2012 | Briefly Speaking • En Bref


Survey of the Circumstances of Lawyers and Law Students with Disabilities in Ontario The Equality Committee wants to hear about the experiences of law students with disabilities.

The OBA Equality Committee Needs Your Input The Equality Committee of the Ontario Bar Association is conducting a survey to obtain information about the circumstances of lawyers and law students with disabilities in Ontario. If you are lawyer or law student with a disability or if your firm or organization employs lawyers or law students with disabilities, we want to hear your stories of your achievements and challenges within the profession. Law Students with Disabilities

The Equality Committee wants to hear about the experiences of law students with disabilities. We need to know whether you were able to obtain the accommodations you required at law school; were you given equal access to programmes and summer employment opportunities; do you feel your law school understood and met your needs and supported your career aspirations? Lawyers with Disabilities

The Equality Committee wants to know whether lawyers with disabilities are able to find employment in their chosen fields and whether they are able to obtain the accommodations they require from employers, including during the interview process. We want to know what barriers still exist. Are some disabilities being accommodated more readily than others? We want to know about the challenges lawyers with disabilities face, but we also want to hear about success stories where creative solutions were found to promote inclusion and address issues of accommodation and access for both employees and clients.

Share Your Experiences The Equality Committee needs to hear from you! Please share your experiences, challenges and success stories with us, so we can better understand what is being done and what remains to be done to ensure the full inclusion of persons with disabilities within the profession. Submit your experiences anonymously to www.oba.org/ECSurvey There are also electronic versions of the survey available on the Equality Committee Website at oba.org. These can be printed, completed and mailed to: OBA Equality Committee

c/o Edgar-Andre Montigny at ARCH Disability Law Centre 425 Bloor Street East Suite 110 Toronto, ON M4W 3R4)

There is no need to put your name or return address on the envelope or survey forms. If you require further options please contact Ed Montigny at ARCH Disability Law Centre at 416 482-8255 Please submit your responses by May 30 2012.

Employers

Accessibility Sub-committee:

The Equality Committee wants to know what employers are doing to attract and accommodate lawyers with disabilities. What challenges do employers face in providing accommodation? What forms of assistance or support could bodies such as the Law Society of Upper Canada or the OBA offer to employers to help them promote inclusion and meet their accommodation obligations?

Jewel Amoah Eduardo Cisternas Ed Montigny Mark Wells

Briefly Speaking • En Bref | February 2012

47


book review

Mediating Justice: Legal Dispute Negotiations, 2nd edition (2011) CCH Canadian Ltd. By the Honourable George W. Adams, Q.C. Reviewed by the Honourable James M. Farley, Q.C. George: That was very interesting, Jim. Half of what you were doing was ADR. Jim: What’s ADR? This was dialogue at the end of a day of George shadowing me in the Commercial List in the period between his appointment and being sworn in. I was unfamiliar with the term “ADR”, but as a former corporate/commercial lawyer, I had some appreciation for the basic concepts of this strange acronym. Thereafter in this area, George was my guru and I was his disciple. I will be forever grateful for that and for his very significant role in the salvation of Algoma Steel and Sault Ste. Marie.

This updated edition is extremely well written; it is easy to read and flows along. It is both a practical book and a theoretical one. The latter aspect is important since no two fact situations are the same and therefore it is extremely important to know the principles involved in dispute negotiations and resolutions so that approaches and guidance to appropriate solutions might be tailored to the fact, law and participant circumstances. It is not good enough to rely, as I originally did, on trusting one’s instincts and gut reactions. When one gets far enough out in uncharted waters, that type of self reliance may end one up as the Titanic when encountering icebergs, which are 90 percent below the surface. Similarly it is important to appreciate the various views as to appropriate methods so that the participants (mediator/facilitator, counsel and/or party) operate within an ethical framework with the aim of achieving a satisfactory resolution which will survive, be respected and allow the parties to get on with their lives and goals, as opposed to remaining in the limbo of endless soulsapping litigation. This new edition delves into the various issues and continues, as did the first, to provide the reader with an easily understood foundation. George captures the essence of mediation and mix of talents it requires in the following passage:

Increasingly there is a growing recognition that mediation is, however, a pluralistic process and that effective mediators perform all of these roles often simultaneously. For example, the most highly sought after mediators tend to be those who use some measure of evaluation as part of their facilitation of reasonable party dialogue but also encourage an examination of perspectives to help the parties understand the situational and cognitive forces which have contributed to their differences. With

48

the unmasking of these “false dichotomies” of mediation, it becomes evident that a mediator cannot ask thoughtful questions without being thoroughly informed about the subject matter of the dispute — all the events, practices and human behaviours involved. Indeed, it has been pointed out that the “condition” of collaboration required for facilitation and problem-solving is the orientation of the parties that mediators are trying to create. In the end result, these polarized and dichotomous mediation labels (i.e., rights-based, interest-based, evaluative, facilitative, therapeutic, transformative, narrative, inside or understanding-based) are giving way to “thicker” descriptions of appropriate mediation roles. This development is consistent with the literature on negotiation and legal dispute resolution reviewed in previous chapters. It also reinforces the view that the mediation of legal disputes is best understood in the context of negotiation and legal processes — that it is not a new and independent process somehow divorced from the realities of conflict resolution, negotiation and legal disputing generally.

Speaking of the parties, he observes:

They are also emotionally involved in their dispute and have a need to tell their stories.

He then goes on to note that the mediation session may be the first time a party hears and understands the position of the other person. There usually is another side as most decisions are made to resolve some issue, not to buy a lawsuit.

In the introductory chapter, there is reference to Lord Brougham’s admonition concerning lawyers zealously protecting the interests of their clients. It is interesting to see in the rest of the book that successful resolutions require an appreciation of what that truly means and why it is better to avoid time-wasting and expensive extravagant aggressive tactics.

This book is a good read. It should be read cover to cover periodically ­— but it is so well organized and its individual contents identified that it is easy to get a necessary update on any particular issue or question just prior to taking any step in the mediation process. I highly recommend it.

As a certain credit card company puts it: “Don’t leave home without it.” The Honourable James M. Farley, Q.C., senior counsel, McCarthy Tétrault LLP

February 2012 | Briefly Speaking • En Bref


Mediating Justice is George Adams’ foremost text for legal dispute resolution. Dubbed the “guru”of mediation, he is one of Canada’s most experienced mediators. Learn why this resource is a must-have for any aspiring or practicing dispute resolution professional by ordering the second edition today.

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] 49


Dawn of a New Era Between Canadian Producers and Broadcasters Terms of Trade Agreement a Historic Deal By David Zitzerman

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n April of 2011, after considerable cajoling by the Canadian Radio-television and Telecommunications Commission (CRTC), the Canadian Media Production Association (CMPA) successfully concluded negotiations and entered into a terms of trade agreement with five of Canada’s largest private television broadcasters, namely, Astral Television Networks, Bell Media Inc. (CTV), Rogers Broadcasting Limited, Shaw Media Inc. (Global) and Corus Entertainment Inc.

The CMPA is a non-profit national industry trade organization which represents Canada’s screen-based media companies that are engaged in the production and distribution of English language TV programs, feature films and interactive media content.

The Agreement came into force as of June 1, 2011, with the exception of certain parts related to the financing of television programs, which came into force on August 1, 2011. Technically, there are really two agreements, as there is one between the CMPA and the broadcasters other than Corus and a separate terms of trade agreement between the CMPA and Corus. However, the Corus Agreement contains no substantive differences from that signed with the other broadcasters. A terms of trade agreement is

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also contemplated with the CBC and negotiations between the CMPA and the CBC will likely begin later in 2011.

A Historic Deal

The Agreement redefines the relationship between Canadian producers (including both CMPA members and the entire Canadian independent media production sector) and the broadcasters. It applies to all independently produced Canadian television productions developed for and commissioned by the broadcasters. According to a recent CMPA update,

The deal applies to the entire life cycle of a show – from first pitch, through to development, production and broadcast on all platforms.

The CMPA’s president and CEO, Norm Bolen, described the importance of the Agreement as follows (Playback Daily, July 8, 2011):

“This deal changes everything. It forever redefines the relationship between producers and broadcasters. But it isn’t worth the paper it is written on unless

February 2012 | Briefly Speaking • En Bref


all independent producers show solidarity and strictly follow the terms of the agreement in their individual negotiations with broadcasters.” To ensure that Canadian producers fully understand and comply, the CMPA organized a national “road show” in July and August of 2011 to discuss and explain the Agreement.

a prohibition on producers deferring their fees and overhead, the retention by producers of a share of film tax credit monies and an efficient mechanism for producers to license the broadcasters’ programming distribution rights in multiple formats (i.e. in addition to conventional television broadcast rights) on terms that are fair and equitable to both producers and the broadcasters.

What are “Terms of Trade”?

The Role of the CRTC

For years many independent Canadian producers have faced an imbalance in their bargaining power vis-a-vis Canadian broadcasters. Only a few Canadian production companies are publicly traded. Most are privately owned corporations with limited capital and many rely heavily on Canadian broadcast license fees to finance their productions. On the other hand, Canadian broadcasters are almost all large publicly traded organizations with considerable economic clout. This inequity in bargaining power has been further exacerbated by the recent consolidation of broadcasters in the Canadian English language market (eg. the recent acquisitions of CTV by Bell Media, Global by Shaw Media and City-TV by Rogers) which has created an oligopoly of giant Canadian media conglomerates, often horizontally or vertically integrated, who effectively control much of the country’s broadcast content.

The CRTC has consistently exhorted Canadian broadcasters over the past several years to conclude terms of trade agreements with the CMPA. As time passed without any such agreements being reached, the CRTC toughened its stance and advised Canadian broadcasters that it would not renew their respective broadcast licenses unless terms of trade agreements were first concluded. See, for example, the following statement by the CRTC (Broadcasting Regulatory Policy CRTC 2009-406, Policy Determination Resulting from the April 27, 2009 Public Hearing, July 6, 2009, at Paragraph 84):

The recent consolidation of broadcasters in the Canadian English language market has created an oligopoly of giant Canadian media conglomerates who effectively control much of the country’s broadcast content. The business model of Canadian independent producers is predicated on the optimal commercial exploitation of their programs across multiple formats and media. If Canadian broadcasters were able to use their tremendous bargaining power to acquire rights to independent productions on inequitable terms (for example, insisting that Canadian producers grant them licenses to valuable digital distribution and ancillary rights for little or no additional compensation) the viability of many Canadian independent production companies could be threatened.

The idea behind the Agreement is to restore a measure of balance in the negotiating power between the broadcasters and the Canadian producers by establishing minimum commercial terms for the broadcasters’ development and broadcast license agreements. In effect, the CMPA is acting much like a guild or union in setting minimum “scale” provisions for Canadian producers. Given this rationale, it is not surprising that the focal points of the Agreement include a maximum license term, Briefly Speaking • En Bref | February 2012

“The Commission recognizes the importance of [terms of trade] agreements in this era of consolidation and of the new platforms upon which content can be accessed. [It will] only consider [license] renewal applications from the [private corporate broadcast groups] for seven years with finalized Terms of Trade Agreements in place.”

The CRTC was therefore instrumental in creating a conducive environment for the broadcasters to enter into the Agreement (or, in simple English, “holding a gun to their heads”).

Parties Subject to the Terms of Trade

The Agreement applies to “all independent productions produced by English-language Canadian independent television producers” for the broadcasters. For a producer to rely on the Agreement, it must satisfy five indicators of “control” enumerated in Section 4.10 of CAVCO’s Canadian Film or Video Production Tax Credit Guidelines (March 31, 2010), namely: (i) control of development, (ii) control of all creative and financial elements, (iii) control over all aspects of production financing, (iv) control over negotiation of initial exploitation agreements, and (v) reasonable and demonstrable monetary participation in terms of budgeted fees and overhead, and participation in revenues of exploitation. There are certain situations where the Agreement does not apply. For example, the Agreement does not apply to programs acquired by a broadcaster for which it does not have industry standard commissioning broadcaster creative and financial approval rights or to programs pro-

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duced in-house by a broadcaster or by its affiliate. Further, the Agreement does not apply to broadcaster “service productions”, including productions where the idea originates from, and development is substantially undertaken by a broadcaster or its affiliate or where the format rights are exclusively acquired by a broadcaster and assigned to an independent producer. Finally, the Agreement does not apply to digital productions that are unrelated to a television program.

Development and Evaluation

The Agreement provides guidance for the evaluation and development of programs.

It requires that the broadcasters must make reasonable efforts to effectively communicate with producers across Canada about the types of projects in which they are interested. The broadcasters must identify on their websites their specific programming services and the personnel in charge of responding to written program proposals with their applicable contact information. The confidentiality of producers’ program proposals is safeguarded by the Agreement and producers must keep confidential the broadcaster’s programming strategies. A broadcaster cannot request a waiver of any existing rights that a producer may have in its program proposal.

The Agreement further provides that the rights to a program proposal are owned solely by the producer, unless there is a signed development agreement to the contrary. A broadcaster may not require a producer to commence development before a development agreement is executed. However, once a development agreement is signed, a broadcaster’s financial participation entitles it to certain exclusive rights, such as to request changes to delivered materials, to participate in additional development and to negotiate a license agreement. The development agreement may not incorporate the terms of a license agreement. These terms are only to be negotiated once the project has been fully developed or the broadcaster has made an order for the project. Where a broadcaster expresses an interest in developing a project, the broadcaster and the producer must use best efforts to execute a development agreement within 60 days. Each phase of development must be specified in the development agreement and the broadcaster has no more than 18 days (40 days in the case of animation coproduction) following the receipt of development materials to inform the producer of whether it approves the submitted development materials. If the broadcaster chooses to turn down the proposal, the broadcaster is only entitled to reimbursement from the producer of its out-of-pocket cash investment in the development of the project. If the 52

project is ultimately greenlit by another broadcaster, this reimbursement is to be paid on the first day of principal photography or key animation.

Once the final deliverables under the development agreement have been received, the broadcaster has 6 months to decide whether it wishes to license the project. At the end of this 6 month period, the Agreement requires the broadcaster to either (i) order the project (subject to negotiation and agreement of the licence terms), (ii) agree with the producer to continue to further develop the project, or (iii) release its interest in the project in writing.

License Conditions

When a project is greenlit by a broadcaster, it may then engage in negotiations with the producer to license the project.

The Agreement provides the producer with a 90 day period, once the broadcaster agrees to order the project, to confirm all other sources of financing for the production. This 90 day period may be altered by mutual agreement so as to provide flexibility for funding deadlines and “exigencies of production”.

The broadcaster must sign a long-form broadcast license agreement at least 2 weeks prior to the commencement of principal photography or key animation, provided that the producer has submitted “reasonable agreed-upon deliverables”. The broadcaster must then broadcast the program on a CRTC-licensed platform within 12 months of the commencement of the licence term. The broadcaster must make good faith efforts to notify the producer 30 days in advance of the first broadcast of the program. Finally, if a broadcaster wishes to order additional episodes of a program for a new season, the order must be made within 6 months of the first broadcast of the last commissioned episode of the preceding season.

A broadcaster’s right of first negotiation (“ROFN”) and right of last refusal (“ROLR”) in both development and license agreements is limited by the terms of the Agreement. A ROFN provides the broadcaster with the first right to negotiate to develop or license a program before the producer can enter into negotiations with another broadcaster. The Agreement requires that that a ROFN must be exercised by the broadcaster by a fixed start date or in reference to a clearly specified timeframe identified in the development or license agreement. If no timeframe is provided, then the timing of the exercise of the ROFN will be at the sole discretion of the producer. If negotiations with the broadcaster are entered into as a result of the exercise of the ROFN, the duration of the negotiation will be the timeframe specified in the development or license agreement, but cannot exceed 45 days. February 2012 | Briefly Speaking • En Bref


A ROLR provides the broadcaster with the right to license a project that it previously rejected by matching the terms offered by another broadcaster. A ROLR can significantly limit the bargaining power of the producer. As a result this type of right is limited by the provisions of the Agreement. Specifically, a Broadcaster may only be granted a ROLR to (i) acquire exclusive exhibition rights for additional programs (meaning additional episodes of the same season or any subsequent season of the program, any sequels, prequels or remakes of the program, or any spin-off programs) or (ii) to obtain an extension of the licence term.

“If Canadian broadcasters were able to use their tremendous bargaining power to acquire rights to independent productions on inequitable terms, the viability of many Canadian independent production companies could be threatened.”

ject to a possible ROFN and ROLF as described below). This 5 year term must commence no later than the earlier of (i) 6 months from the delivery of the program (or the last episode of the program in the case of a series), or (ii) the first telecast of the program (or any episode of the program in the case of a series).

While previously, a broadcaster could negotiate an automatic extension of the original license term for the original season if additional seasons were ordered, this is no longer permitted by the Agreement. For example, a broadcaster can no longer automatically extend the term of Season 1 once it orders Season 2 to ensure that the licenses for both Season 1 and 2 end simultaneously. This ensures that producers do not progressively lose the potential value of exploiting earlier seasons as new seasons are produced and broadcast.

A broadcaster is permitted to have a ROFN and a ROLF in order to extend the original 5 year term of the license, but only if a fair market value license fee is paid to the producer for the extension. Each subsequent license extension is for a maximum period of up to 5 years. The broadcaster may exercise its right to extend the license as of the earlier of (i) 6 months prior to the expiry of the third year of the original 5 year licence term, or (ii) 3 months following the execution of the licence agreement for a subsequent season of the program.

Editorial Control

The Agreement further addresses a broadcaster’s entitlement to share in any surplus financing proceeds beyond the original approved financing plan and/or in any production underages. Where the producer receives surplus funds for a project after the broadcaster has approved the project’s financing plan, the Broadcaster and the producer must give good faith consideration to whether the surplus funds should form part of the financing of the production budget. The Agreement provides that under no circumstances will the surplus entitle the Broadcaster to require a reduction in its licence fee. The broadcaster is, however, entitled to a share of the surplus funds in proportion to any equity investment it has made in the project. Further, where a program is produced under budget, the broadcaster is entitled to a pro-rata share of the underages proportional to its investment in the financing of the project.

License Term

The Agreement also provides for specific limits on the term of a broadcast license. Specifically, a broadcast license can only have a maximum duration of 5 years (subBriefly Speaking • En Bref | February 2012

The Agreement provides that, subject to certain permitted customary broadcaster approval rights, it is the producer that retains ultimate control over a project. A broadcaster, however, is entitled to exercise its standard creative, financial and technical approvals, and such approvals must be published on the broadcaster’s website. Consultations and requests for approvals from either a broadcaster or a producer must be made in a timely manner, so that both parties have sufficient time to respond and there is no unreasonable delay in the development or production process.

There are circumstances where a broadcaster may request changes to creative elements or propose additional creative elements that were not contemplated at the time the license agreement was initially entered into. In order for a broadcaster to be entitled to this editorial control, it must provide the producer with an enhanced license fee proportionate to the scope of the new work required. This enhanced license fee is meant to cover the additional costs associated with the creative changes that were not contemplated by the original approved budget. The broadcaster is also required to give the producer written notice of its requests for creative changes or additional creative elements as soon as possible. 53


The Agreement also clarifies the screen credits to which a broadcaster and its representatives may be entitled. While the broadcaster and its personnel are entitled to recognition in the screen credits of the program, credit placement and titles must be in conformity with industry standards. broadcaster’s representatives are entitled to be accorded traditional screen credits such as “Executive in Charge of Production”, but not screen credits customarily reserved for the producer such as “Producer” or “Executive Producer” credits.

Broadcaster and Producer Rights

A broadcaster is entitled to certain exploitation rights in return for its payment to the producer of a fair market value license fee. These rights are exclusive to Canada and are applicable to all languages in which the broadcaster is licensed to operate. The primary right of exploitation is linear broadcast rights on all CRTC licensed television services owned or affiliated with the broadcaster. broadcasters are also entitled to various additional exploitation rights that must all be geoblocked to Canada, namely: (i) linear streaming rights on all platforms that are simultaneous or non-simultaneous with the broadcast channels, (ii) free-to-consumer non-linear on-demand exhibition on all platforms, (iii) subscription-based non-linear ondemand exhibition on all platforms, and (iv) the creation and operation of a program website, which includes the creation of original free-to-consumer or subscriptionbased content for the website. The foregoing rights are exclusive during the license term and the broadcaster is also granted a holdback against the “exploitation of the format” during the license term.

In addition to these basic exploitation rights, a broadcaster may also negotiate to acquire additional rights. However, the acquisition of such additional rights is normally subject to a 50/50 gross revenue share between the broadcaster and the producer. If a broadcaster acquires any additional rights, but does not exploit them within 12 months of the start of the license term, the rights so acquired automatically revert to the producer. If the foregoing rights are retained by the producer, they are subject to a 12-month holdback commencing at the start of the license term.

In addition, a broadcaster may acquire rights in certain types of producer-created digital content, such as websites, webisodes and mobisodes, if it either pays an additional license fee or it and the producer participate in a 50/50 revenue split. For the additional license fee, the broadcaster may acquire Canadian rights to free-toconsumer original digital content produced by the producer. For the 50/50 revenue split, and at the discretion of the producer, the broadcaster may also acquire Canadian 54

rights to revenue-generating digital content produced by the producer.

Broadcasters are precluded from acquiring or having a profit participation in “any other rights”. A non-exhaustive list of these other rights that are exclusively retained by the producer is provided in the Agreement. For example, a broadcaster may not acquire rights in: French-language and other language, format, theatrical, music publishing, non-promotional games and merchandising, all other nontheatrical, Canadian and international retransmission, Canadian and international sublicensing and distribution, and publishing of books, e-books or similar materials.

Super-License Fees

The payment of a “super-license fee” allows the broadcaster to negotiate for additional rights with the producer beyond those otherwise permitted to be licensed under the Agreement. The Agreement defines a “super-license fee” as the lesser of (i) the current (or subsequently increased) combined CMF threshold licence fee for the applicable genre plus the maximum licence fee top-up for that genre or (ii) a licence fee representing at least 60% of the project’s production budget.

If a super-license fee is paid, the broadcaster may negotiate for a higher revenue share of certain rights and for a share of the profits from the producer’s exploitation of rights that are otherwise exclusively reserved for the producer. The broadcaster may obtain a higher revenue share, meaning its participation rate can be increased from 50% to a maximum of 75%, for the following rights: transaction-based non-linear on-demand exhibition on all platforms, electronic sell-through or download-to-own platforms, in flight, DVD and home video, and producercreated revenue-generating original digital content. Broadcasters may also, upon payment of a super-license fee, negotiate for a share of the profits from the exploitation of the rights that are exclusively reserved for the producer, such as the exploitation of non-promotional games and merchandising. A broadcaster’s profit participation in such reserved rights may not be greater than 1.5 times its dollar investment, expressed as a percentage of the budget that is over and above the combined CMF threshold licence fee for the applicable genre plus the maximum licence fee top-up for that genre, to a maximum of 30%.

Other Key Areas of the Agreement

The Agreement provides guidance as to a producer’s permitted fees and overhead, as well as its retention of a share of film tax credits. Producer fees and overhead must be industry standard, as accepted by Canada Revenue February 2012 | Briefly Speaking • En Bref


Agency (CRA). Further, producer fees and overhead may not be deferred by the producer or invested. The Agreement similarly protects the producer by limiting its permitted investment of film tax credits. A Producer may only invest up to a maximum of 75% of eligible film tax credits in a project. Finally, the Agreement provides for standard industry audit rights to be given to a producer or broadcaster that has an entitlement to a revenue stream. “Standard industry audit rights” include the right to recoup reasonable audit fees and expenses in a circumstance where an audit reveals a negative variance greater than 5%. The amount in dispute must be greater than $1000 in order for these audit rights to be triggered.

The agreement establishes a key framework for the Canadian media industry to move forward and prosper in the age of digital distribution

Timeframe and Administration As mentioned above, the Agreement is in full effect with respect to all of its provisions as of August 1, 2011. It remains in force with respect to each broadcaster until the expiry of the longest of the next issued license terms of the broadcasters (excluding Astral). Six months prior to the expiry of the Agreement, the broadcasters and the CMPA must review the Agreement and determine whether it should be renewed or amended. These negotiations with respect to renewal or amendment of the Agreement must conclude in time for each respective broadcaster’s next subsequent CRTC license renewal. Notwithstanding this, the parties may reopen the Agreement for renegotiation at any time after two years following its initial coming into force but if no deal is reached between them regarding any modifications, the Agreement remains in force unamended until the end of the term described above. In terms of ongoing administration, the CMPA and the broadcasters have agreed to meet on a semi-annual basis to discuss new issues or current provisions of the Agreement which are no longer effective. To this end, the parties have agreed to set up a working committee to address issues arising under the Agreement to be comprised of two delegates of the CMPA, the broadcasters and Corus, respectively.

the parties. A dispute is considered to be identified and commenced where a producer, a broadcaster or the CMPA gives written notice to the other(s) that it has concerns with respect to the interpretation or the application of the Agreement. If the applicable parties are unable to resolve the dispute within fifteen business days, the parties must refer the matter in dispute to a sole private mediator for mediation. If the mediation effort fails after thirty days or, as an alternative to mediation, the party initiating the dispute so desires, the matter will be referred to arbitration by a sole arbitrator. The arbitration procedure is governed by the Arbitration Act 1991 (Ontario) and the Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein.

Conclusion

The Agreement represents a watershed in the relations between Canadian producers and the broadcasters. It sets new “rules of the road” for both their legal and business relationships. It provides clarity regarding the rights which the broadcasters may acquire from Canadian producers and the compensation which they must pay for those rights.

There will no doubt be some disagreements between the parties regarding the Agreement and the need for further clarifications (for example, the Canada Media Fund recently announced that its eligibility rules would be revised in order to conform to the Agreement as they contradicted it in several respects). However, ultimately, the Agreement benefits both Canadian producers and the broadcasters by establishing clear legal criteria and business terms for their agreements. Most importantly, it establishes a key framework for the Canadian media industry to move forward and prosper in the age of digital distribution and multiple media formats and platforms. Finally, and as a bonus, it is good news for entertainment lawyers too (as new and complex rules always are). The author gratefully acknowledges the assistance of Sondra Rebenchuk, Student-at-law. This article was originally published in the December 2011 newsletter of the OBA Entertainment, Media & Communications Section.

Dispute Resolution

A Dispute Resolution Provision is attached as Appendix “A” to the Agreement. It is intended to facilitate the rapid and efficient resolution of disagreements between Briefly Speaking • En Bref | February 2012

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