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

December 2010 | Vol. 35 No. 6

EnBref

BRIEFLYspeaking Going Mad? Managing your law practice effectively


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Briefly Speaking • En Bref | December 2010

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December 2010 | Briefly Speaking • En Bref


BRIEFLYspeaking OBA Officers/ Comité directeur de l’ABO R. Lee Akazaki President/Président Paul R. Sweeny 1st Vice President/1er Vice-président Morris A. Chochla 2nd Vice President/2e Vice-président Sean M. Kennedy Secretary/Secrétaire Douglas R. Downey Treasurer/Trésorier Carole J. Brown Immediate Past President/Présidente sortante Steve Pengelly Executive Director/Directeur exécutif Editorial Board/Comité rédacteur James Morton Chair / Président Steinberg Morton Hope & Israel LLP Nancy Cooper Nancy E. Cooper Law Office Alastair Clarke York Community Services The Honourable Justice Heather McGee Superior Court of Justice

19 31 32 36

Mandatory CLE is Here

Social Networking with Caution

Institute 2011

Snapshots

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

FEATURES In Memoriam: Laura Legge | 5 Mandatory CLE is Here | Susannah Roth | 19 ALERT, OBA Charity of Choice | 20 OBA Launching Social Media Platform | Filippo Conte | 21 Civil Fraud Claims in Ontario | James Morton | 23 Scaring Up Good Will for the Legal Profession | Jon Clancy | 24 Putting Time On Your Side | Nancy E. Cooper | 26 Best Practices to Ensure Lawyer Safety | Jeffrey S. Percival | 28 Cautionary Advice for Social Networking with Clients | J. Andrew Sprague | 31 The Lowdown on Institute 2011 | Filippo Conte | 32 Online Video Library Helps Public Understand Justice System | 34 Snapshots – Civil Litigation Award Gala, Home Court Advantage, Fall Council, New Calls Reception | 36

COLUMNS Nota Bene | 4 President’s Message/ Message de la président | 6 Supreme Court of Canada Update | Eugene Meehan Q.C. | 10 Advocacy In Action – Welcome New Director of Government & Stakeholder Relations | 12 Spotlight On Sections – Law Practice Management | David Debenham | 13 Queen’s Park Update – Family Law Reform | Attorney General Chris Bentley | 14 Behind The Bench: Justice Mark Edwards, Justice John A. Payne | 16 Points de Jurilinguistique | 20 Just For Laughs – Go Ahead...Stuff Your Face | Marcel Strigberger | 22

PUBLICATIONS AGREEMENT NUMBER 40069139 RETURN UNDELIVERED CANADIAN ADDRESSES TO: OBA | 300-20 TORONTO ST TORONTO, ON | M5C 2B8

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

Briefly Speaking • En Bref | December 2010

3


NOTA BENE

Nota Bene notabenenotabenenota benenotabenenotabene notabenenotabenenotabene SUPERIOR COURT OF JUSTICE The Honourable R. John Harper, a judge of the Superior Court of Justice of Ontario (London), is appointed senior judge of the Family Court Branch (Toronto) to replace Madam Justice M.J. Hatton, who was transferred to Durham effective August 6, 2010.

Mr. Justice Harper was appointed a judge of the Superior Court of Justice in 2006. He received a Bachelor of Laws (LL.B.) from Dalhousie Law School in 1972 and was admitted to the Ontario Bar in 1974. Prior to his appointment, he was a senior partner with Harper Jaskot. He has been a member and vice-chair of the Board of Directors of the Community Child Abuse Council (2005). He was past chairman of the Development Committee for the Association of Family and Conciliation Courts and past president of the Hamilton Law Association. He was recognized as a certified specialist in family law by the Law Society of Upper Canada in 1996. He has been a prolific writer and lecturer on family law matters. The Honourable M. Gregory Ellies, partner with Lucenti, Orlando & Ellies Professional Corporation in North Bay, is appointed a judge of the Superior Court of Justice of Ontario in Sault Ste. Marie to replace Mr. Justice G. Tranmer, who was transferred to Kingston effective July 5, 2010.

Mr. Justice Ellies received a Bachelor of Arts (B.A.) in 1981 and a Bachelor of Laws (LL.B.) in 1984 from the University of Western Ontario. He was admitted to the Ontario Bar in 1986. Mr. Justice Ellies has been a partner with Lucenti, Orlando & Ellies since 1997. He was also a partner at Donnelly, Birnie (1990-1997), Birnie & McMillan (1988-1990) and at Ellies & Saltstone (1986-1988). His main areas of practice were civil litigation and criminal law. He was recognized as a certified specialist in civil litigation in 2004. 4

Mr. Justice Ellies was a member of the Ontario Bar Association, the Advocates’ Society and the Criminal Lawyers Association (1999-2006). He taught criminal and constitutional law part-time at Nipissing University (1987-1989) and is a current member of the Board of Governors. He has been a frequent speaker at schools, Canadore College, Nipissing University and the Rotary Club.

The Honourable John M. Johnston, a sole practitioner in Brockville, is appointed a judge of the Superior Court of Justice of Ontario (Brockville) to replace Madam Justice H. Pierce, who was appointed Regional Senior Judge, Northwest Region, (Thunder Bay) on July 31, 2009. This vacancy was transferred to Brockville.

Mr. Justice Johnston received a Bachelor of Arts (B.A.) from Queen’s University and a Bachelor of Laws (LL.B.) from the University of Calgary. He was admitted to the Ontario Bar in 1989. Mr. Justice Johnston has been a sole practitioner since 1996. He was a partner at Beale, MacIntosh, Lewis and Johnston (19911996) and at Beale, MacIntosh, Lewis, O’Shaughnessy and Johnston (1989-1991). His main areas of practice include criminal law, family, litigation, wills and estates and child welfare. Mr. Justice Johnston is currently chair of the Board of Directors of the Canadian Mental Health Association, Leeds-Grenville Branch and member since 2001. He was president of the Leeds-Grenville Law Association (2006-2007) and a member of the Legal Aid Committee in Brockville since 2002. APPOINTMENTS

Louise Harris, the Ontario Bar Association’s director of Government and Stakeholder Relations, has been appointed to the Parole Board of Canada. Elizabeth Hall, former chief of staff to Ontario’s Attorney General, will replace Louise. December 2010 | Briefly Speaking • En Bref


a e e

IN MEMORIAM

Laura Legge In 2007, in celebration of the Ontario Bar Association’s centennial year, Briefly Speaking ran a special column titled Trailblazers, to honour those remarkable leaders who forged a path that forever changed the profession of law. Laura Legge was the first and perhaps one of the most inspirational candidates to be recognized. Born Laura Louise Down in 1923, she was raised on a farm in Southwestern Ontario. Legge broke barriers from very early on: in 1944 she graduated with an Honours BA from Western University and went on to graduate from the Toronto School of Nursing at the top of her class. With her scholarship, she enrolled at Osgoode Hall Law School.

After being called to the bar in 1948, Legge was hired by the Ontario Government as a junior solicitor in the Department of Health, where she was one of the first to challenge pay equity for women. Seven years later, she set off to form her own practice, Legge & Legge, with her husband, Major-General Bruce Legge, Q.C.

Legge went on to become the first woman elected as a bencher of the Law Society of Upper Canada, and the first female treasurer of the Law Society. She also served as president of the Women’s Law Association, president of the Federation of Law Societies of Canada, and was a long-time member of the Canadian Bar Association Ontario (OBA). Legge was bestowed with the Order of Ontario in 2004, and in 26 Briefly Speaking (Multi-tool) 12/18/08 2:51 PM 2007 the Law Society created the Laura Legge Award to rec-

ognize women lawyers exemplifying leadership in the legal profession.

Ms. Legge is survived by her three children, Elizabeth, John and Bruce, and her eight grandchildren. She is predeceased by her beloved husband, Bruce.

As we look back on a career that has earned much respect and admiration from her colleagues and gratitude from the many clients she served so faithfully, it is clear her legacy will Page 1 continue on.

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Briefly Speaking • En Bref | December 2010

5


PRESIDENT’S MESSAGE

The End of Law Societies? Not quite, but we need to polish our image to save self-regulation Lee Akazaki

Our profession’s public image is in free-fall.

Negative media is partly to blame. So, too, is jealousy against educated élites. But neither explains decades of decline, and neither explains why the public harbours greater ill will toward us than other professionals. Lawyer jokes abound. Indeed, it is hard to find similar ill feeling toward doctors, academics or engineers. Even the accountants, responsible for pink slips by the millions, receive grudging blue-collar respect as saviours of businesses. Instead of blaming “those who buy newsprint by the ton,” or the public we serve, we need look no further than the belief that self-regulation was intended to protect members of the legal profession from public accountability. It is a misconception shared by nonlawyers and lawyers alike, and it is toxic to our public image.

In 2007, reforms to the legal profession severed discipline and regulation from the Law Society of England and Wales (the LSEW), into the Solicitors Regulation Authority and the Legal Complaints Service. Of course, I over-simplify the wrenching history leading to this split. The LSEW’s fate was ultimately sealed by the landmark 2004 Clementi Report urging such reforms. The institutional target of the outcry was the tension between the LSEW’s dual roles as promoter of the legal profession and as its regulator in the public interest. Consumer complaints against solicitors mounted. Reform came not fast enough. Fuelled by popular anti-lawyer sentiment, government trained is cannons on solicitor self-regulation. (Don’t think it can happen here? In the ethos of Tea Party politics, all it will take is another Bernardo Tapes episode for a provincial government to succumb to public outrage and convene a Clementi-style public review.) Predictably, disestablishment of the regulatory function of the LSEW sparked fierce resistance. As Sir David Clementi concluded: 6

Reform will not be easy. Whilst there is pressure for change, from consumer groups and also from many lawyers, reform will be resisted by other lawyers who are comfortable with the system as it is. Lawyers who are opposed to the reforms in this Review will either argue that I am mistaken and have failed to understand the special characteristics that set the law apart, or call for further research and consultation, kicking reform into the long grass.

The mandates for the new entities drew a bright line between the remaining “promoting the bar” role of the remaining LSEW and the “protecting the public from lawyers” role of the new departments. In Ontario, there remains confusion about the roles of the Law Society of Upper Canada (the Law Society) and the OBA. Some public confusion is unavoidable, but it is nevertheless one both entities must strive to counter. No lawyers in Ontario would ever mistake the OBA for their governing body. Lawyers in Ontario who consider the Law Society as their promoter or protector, either in their practices or on the public stage, still abound. Historically, they were in the majority, however indefensible this view is now. Witness the feeling of betrayal expressed by many lawyers when the Law Society recently agreed to license and regulate paralegals. The Law Society did not betray lawyers. For betrayal, one has to owe a loyalty. Recent governance reforms in Convocation have been a step in the right direction. The Law Society must do more to promulgate the message that it exists to serve the public, not lawyers. The public interest role of the Law Society is clearly stated in the Law Society Act. There is no mandate to advance the interests of lawyers beyond a jurisdiction to advance the rule of law (the basic political condition in which lawyers’ advice and services are in need). There is certainly no mandate to help lawyers earn a living. The Law Society “offers” education and assistance to lawyers, but even in doing so it treads a December 2010 | Briefly Speaking • En Bref


PRESIDENT’S MESSAGE fine line. It does so to protect clients, not lawyers. There are no “member benefits” at the Law Society on car rental discounts or front-of-the-line access to basketball tickets. Nor does the Law Society restrict the number of lawyers by making its licensing examinations unduly rigorous. As any lawyer in Ontario knows, one wants to be on good terms with the Law Society. Nevertheless, it is not the Law Society’s role to be the “friend” of lawyers. Membership in the Law Society is a political franchise—to elect benchers and to be benchers—nothing else. Lawyers benefit, in that those who preside over their regulation and discipline come from their own ranks. The fallout after Clementi has had the salutary effect of placing law societies around the world on notice. Public confidence in the profession depends much on how sharply we define the roles of the regulator and the bar association. In modern governance parlance, benchers must be representative of the legal profession, not for. In the 2011 bencher elections, some candidates will undoubtedly campaign on the short-term message of being there for lawyers. Watch out for those who will say, “I’ll fight for you, in Convocation.” These “fighters” will perform a disservice to the profession by perpetuating alienation between the profession and the public we serve. Instead, lawyers will have a historic opportunity to elect leaders with a long-term vision of our future. For loyalty to lawyers, look not to the Law Society. Look to the OBA. 5860_MazeAd_OBA_News01F_Layout 1 9/17/10 2:21 PM Page 1

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MESSAGE DU PRÉSIDENT

La fin des barreaux?

Pas tout à fait, mais il nous incombe de polir notre image pour sauvegarder l'autoréglementation Lee Akazaki

L'image publique de notre profession est en chute libre. La couverture négative des médias est à re-

procher en partie. La convoitise envers les élites cultivées y est également pour quelque chose. Mais ni une ni l'autre n'explique les décennies de déclin, ni la raison pour laquelle le public nous voue un plus grand mépris qu'envers les autres professions libérales. Les blagues portant sur les avocats sont légion. En effet, on rencontre rarement une telle animosité envers les médecins, les universitaires ou les ingénieurs. Même les comptables, à l'origine de millions d'avis de renvoi, bénéficient du respect peu enthousiaste des cols bleus en tant que sauveurs d'entreprises. Au lieu de jeter le blâme sur « ceux qui achètent les journaux à la tonne » ou le public que nous desservons, nous n'avons qu'à nous attarder à la croyance selon laquelle l'autoréglementation a été conçue pour protéger les membres de la profession juridique contre toute responsabilité à l'égard du public. Cette idée fausse est partagée tant par les avocats que par les membres du public, et elle se répercute négativement sur notre image publique.

En 2007, des réformes visant la profession juridique ont transféré le droit d'application de mesures disciplinaires et de réglementation du barreau d'Angleterre et du pays de Galles (Law Society of England and Wales, LSEW) aux organismes Solicitors Regulation Authority et Legal Complaints Service. Bien entendu, je simplifie l'histoire tortueuse ayant mené à cet aboutissement. Le sort de ce barreau a fondamentalement été décidé par le rapport-clé Clementi de 2004, qui conseillait fortement l'adoption de telles réformes. La cible institutionnelle de ce tollé était la tension entre le rôle double du LSEW d'agent de promotion de la profession juridique et d'organisme de réglementation dans l'intérêt du public. Les plaintes des consommateurs contre les avocats s'étaient multipliées. La réforme est arrivée trop tard. Poussé par la vague populaire anti-avocats, le gouvernement s'est attaqué à l'autoréglementation des avocats. Ne pensent pas qu'il peut se produire ici ? Dans l'éthos de la politique « Tea Party », il faudra simplement avoir un autre épisode de cassette vidéo Bernardo, pour qu'un gouvernement provincial succombe à l'outrage public et pour assemblée une revue publique du genre Clementi. 8

Comme c'était à prévoir, le démantèlement de la fonction de réglementation du LSEW a suscité une vive résistance. Comme Sir David Clementi l'a conclu :

La réforme ne sera pas aisée. Bien que de la pression envers le changement soit exercée par des groupes de défense des consommateurs et par nombre d'avocats, les réformes se heurteront à la résistance d'autres avocats qui ne voient aucun problème au système dans sa forme actuelle. Les avocats qui s'opposent aux réformes détaillées dans le présent rapport feront valoir que je fais fausse route et que je n'ai pu comprendre les particularités du droit, ou ils exigeront des recherches et des consultations supplémentaires, ce qui ralentirait grandement les réformes.

Les mandats de chaque nouvelle entité ont permis de délimiter clairement le rôle de « promotion du barreau » du LSEW dans sa nouvelle forme, et celui de « protection du public contre les avocats » des nouveaux organismes. En Ontario, la confusion demeure quant aux rôles du Barreau du Haut-Canada (le barreau) et de l'ABO. Bien qu'un certain degré de confusion soit inévitable, les deux organismes doivent tout de même s'efforcer d'éclairer les membres du public. Aucun avocat de l'Ontario ne saurait confondre l'ABO et l'organisme encadrant leur profession. Sont encore nombreux les avocats ontariens qui considèrent le barreau comme leur agent de promotion ou de protection, au sein de leur cabinet ou sur la scène publique. Ils ont historiquement constitué la majorité des avocats, même si leur opinion est aujourd'hui indéfendable. On n'a qu'à tenir compte du sentiment de trahison récemment ressenti par plusieurs avocats lorsque le barreau a convenu d'autoriser et de réglementer les techniciens juridiques. Le barreau n'a pas trahi les avocats. Pour qu'une trahison se produise, il doit y avoir de la loyauté. De récentes réformes en matière de gouvernance au sein du Conseil ont représenté un pas dans la bonne direction. Le barreau doit en faire plus pour démontrer qu'il est au service du public, non pas des avocats. Le rôle de défense de l'intérêt public du barreau est clairement énoncé dans la Loi sur le Barreau. Hormis la compétence December 2010 | Briefly Speaking • En Bref


MESSAGE DU PRÉSIDENT

de faire progresser la primauté du droit (la condition fondamentale pour que les conseils et les services des avocats soient utiles), il n'existe aucun mandat pour l'avancement des intérêts des avocats. Chose certaine, aucun mandat n'existe pour aider les avocats à gagner leur vie. Le barreau « offre » de la formation et de l'aide aux avocats, même si ce faisant il marche sur un fil de fer. Il le fait afin de protéger les clients, et non pas les avocats. Il n'existe aucun « avantage aux membres » au sein du barreau, tel que des rabais sur la location de voitures ou l'accès exclusif à des billets de matchs de hockey. Le barreau ne restreint pas non plus le nombre d'avocats en rendant ses examens d'obtention de licence excessivement rigoureux. Comme chaque avocat en Ontario le sait, il est important d'être en bons termes avec le barreau. Néanmoins, le barreau ne joue pas le rôle d'« ami » des avocats. L'adhésion au barreau constitue une franchise politique : élire des conseillers au barreau et être conseiller au barreau, et rien d'autre. Les avocats en profitent, dans la mesure où ceux qui président à la réglementation de leur profession sont issus de leurs pro-

pres rangs. Heureusement, les retombées du rapport Clementi ont servi d'avertissement aux barreaux à l'échelon mondial. La confiance du public envers la profession est tributaire de notre définition claire des rôles de l'organisme de réglementation et de l'association du barreau. En matière de gouvernance moderne, les conseillers du barreau font office de représentants de la profession juridique, et non pas au service de la profession juridique. À l'occasion des élections des conseillers du barreau en 2011, les candidats feront sans doute campagne en s'appuyant sur le message à court terme de service aux avocats. Méfiez-vous de ceux qui diront « Je vais me battre pour vous, au Conseil ». Ces « combattants » rendront un mauvais service à la profession en aliénant perpétuellement le public que nous desservons. Les avocats bénéficieront plutôt d'une occasion historique d'élire des chefs ayant une vision à long terme de notre avenir. En matière de loyauté envers les avocats, oubliez le barreau. Tournez-vous plutôt vers l'ABO.

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Briefly Speaking • En Bref | December 2010

9


SUPREME COURT OF CANADA UPDATE

Summaries Eugene Meehan, Q.C.

T

he following is a summary of all appeals and all leaves to appeal (ones granted – so you know what areas of law the S.C.C. will soon be dealing with, in case any may be an area of law you’re litigating/advising/managing). For leaves I’ve specifically included both the date the S.C.C. granted leave and the date of the C.A. judgment below.

This summary covers August 21 – October 11, 2010. If you’d like previous reports so you’re rightup-to-date, let me know, and I’ll e-mail them to you: emeehan@langmichener.ca. APPEAL JUDGMENTS

Criminal Law: Right to Counsel R. v. Willier (Alta. C.A., April 3, 2008) (32769) October 8, 2010 R. v. Sinclair (B.C.C.A., March 27, 2008) (32537) October 8, 2010 R. v. McCrimmon (B.C.C.A., November 21, 2008) (32969) October 8, 2010 The S.C.C. held, in the above three cases, that: ºº

s. 10(b) requires the police:

ºº

if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable op-

ºº

10

to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel

ºº •

portunity to exercise the right (except in urgent and dangerous circumstances); and

to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

when a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then.

should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning; if the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond; what amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation. December 2010 | Briefly Speaking • En Bref


SUPREME COURT OF CANADA UPDATE

if the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended.

INSURANCE: DUTY TO DEFEND

Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada (B.C.C.A., March 26, 2009) (33170) September 23, 2010 The S.C.C. held: • •

• • • •

an insurer is required to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured for the claim it is irrelevant whether the allegations in the pleadings can be proven in evidence; i.e. the duty to defend is not dependent on the insured actually being liable and the insurer actually being required to indemnify; what is required is the mere possibility that a claim falls within the insurance policy

actuary, and the trial judge was correct in concluding HBC was permitted to take contribution holidays. Transferred employees did not have an equitable interest in the surplus of the pension fund, their only interest was in their defined benefits. As the defined benefits were protected in the transfer, HBC did not breach any fiduciary obligation. The S.C.C. added that this decision depended on the text and context of the pension plan documentation put before the Court, does not purport to deal with other situations involving actuarial surplus and plan transfer, and each situation must be evaluated on a case-by-case basis.

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

where it is clear the claim falls outside the policy, either because it does not come within the initial grant of coverage or is excluded by an exclusion clause, there is no duty to defend

in examining the pleadings to determine whether the claims fall within the scope of coverage, the parties to the insurance contract are not bound by the labels selected by the plaintiff the use or absence of a particular term will not determine whether the duty to defend arises what is determinative is the true nature or the substance of the claim.

PENSIONS: DEFINED BENEFIT PLANS

Burke v. Hudson's Bay Co. (Ont. C.A., May 20, 2008) (32789) In the context of Hudson’s Bay Company (“HBC”) selling a division to the Northwest company (“NWC”) with a transfer of employees from the former to the latter, an agreement between the two companies provided that NWC would establish a new pension plan, with benefits at least equal to those provided under the HBC plan. The S.C.C. concluded that the pension plan documentation allowed HBC to charge plan administration expenses to the fund, that there was no obligation on HBC to transfer a pro rata portion of the surplus on the sale, and that HBC's obligations to the transferred employees were satisfied by assuring their defined benefits. The HBC pension plan did not impose an obligation on HBC to pay plan administration expenses, and was permitted to charge plan administration expenses to the pension fund. Whether HBC was permitted to take contribution holidays was not appealed, but the S.C.C. noted that the language in the pension plan documents indicated the employer's contributions were determined by an Briefly Speaking • En Bref | December 2010

11


ADVOCACY IN ACTION

OBA

The OBA Welcomes New Director of Government and Stakeholder Relations October was a month of transition for the OBA advocacy team. On October 15th, the OBA said goodbye to Louise Harris, the director of Government and Stakeholder Relations, who has joined the Parole Board of Canada. Her five years of dedication to the organization will be missed by many of the members, stakeholders and staff who had the opportunity to see her in action on behalf of the legal profession. During her tenure she helped to shepherd the profession through a number of complex, challenging and at times delicate issues. From paralegal regulation to legal aid reform and addressing the systemic problems in our family justice system, Louise helped ensure the voice of the legal profession was always heard.

Taking over for Louise is Elizabeth “Betsy” Hall. As a practising lawyer since 1997, Elizabeth has worked in a wide variety of law firm settings including large Toronto firms, a litigation boutique, as well as a small-town practice in Orangeville. She has held a number of senior roles in the public sector including acting as an advisor in the Ministry of Labour and the Ministry of Training, Colleges and Universities, as well as serving as chief of staff to Ontario’s Attorney General.

Association of Family Law Mediators and the Alternative Dispute Resolution Institute of Ontario. This is the final release of recommendations resulting from the November 2009 Home Court Advantage conference. • • • •

The report recommends four key pillars of reform:

 roviding Early Information for Separating Spouses P and Children  ssessing Parties and Directing Them Using a A Triage Approach

Access to Legal Information and ADR Alternatives Developing a Streamlined Family Court Process

This report can be viewed at www.oba.org/submissions

DAMAGES QUANTIFICATION BUSINESS VALUATION FORENSIC ACCOUNTING

Final Proposed Accessible Built Environment Standard

The OBA has delivered its commentary on the Final Proposed Accessible Built Environment Standard, as part of the Accessibility for Ontarians with Disabilities Act, 2005. The standard was developed by a committee composed of people representing the disability community, transportation providers, businesses and public sector organizations such as school boards and municipalities. The OBA has been an active participant in the preparation of standards throughout all stages of development. The OBA’s commentary can be viewed at www.oba.org/submissions

Home Court Advantage Report Recommends Significant Changes to Family Law Process in Ontario On September 27th, members of the legal and mediation communities presented Attorney General Chris Bentley with a report recommending significant changes to how family law matters are handled by Ontario’s justice system. This report was co-authored by the Ontario Bar Association, the Ontario 12

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December 2010 | Briefly Speaking • En Bref


SPOTLIGHT ON SECTIONS

Law Practice Management David Debenham The OBA’s Law Practice Management Section is a

collaboration of lawyers and those who act as consultants to law firms with a view to improving individual practices and the management of small and medium sized law firms. We share ideas about the latest techniques and trends that can help a law firm or law practice prosper. Marketing, technology, recruiting, finance - these and many other law office management topics are regularly presented with top speakers from across Canada. It's what they never taught you in law school, but information no lawyer can do without.

portunity to share practice management knowledge with others while reading our educational materials and attending our programs in person or otherwise. The only reason not to join our Section is that you do not have enough time - perhaps this is the first challenge we can help you overcome! David Debenham is a partner with Lang Michener LLP in Ottawa

Because it is user driven we address topics that you won’t find elsewhere, with programs such as “Rainmaker” Skills for Associates, Tips for Managing Your Practice through Technology. Attracting New Clients in Tough Economic Times and in Good Times, How To Work A Crowded Room: Put The Fun Back Into Your December Business Parties, Financial Management for Lawyers Second Session -Maximizing Profitability, The Law Firm Accounting Series, The Virtual Assistant: Every Lawyer Needs One, The Big Advantage of Being Small and more. Our advantage is that we are member driven; through the use of social media as a marketing tool, succession planning in small firms and publishing articles in our newsletter, we are able to address our members’ specific needs. Our mission is to encourage you to initiate discussions about the challenges to your practice and then investigate, develop, and disseminate information that will make you and your law firm more effective, efficient, and responsive to those challenges, particularly in the areas of marketing, management, accounting, finance, human resources and technology.

As an example, we were asked to address the effect of the downturn on law firm management - the result was Peter Cleveland’s program Managing in Difficult Times, held in Ottawa in October. Peter is the former managing partner of Ernst & Young’s Ottawa office, where he acted as a consultant to law firms throughout Ontario. This is just one example where members get premier law firm consulting advice at member prices, wherever they might practice; with the use of new media, our seminars are available throughout the province. Active members receive additional benefits by developing invaluable working and social relationships, having the opBriefly Speaking • En Bref | December 2010

13


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

Family Law Reform Underway Chris Bentley Justice must work in the way its users need it to. It must be faster, more effective and more affordable. To achieve this, family law is undergoing some of the most significant reform seen in many years.

Last December I launched the four pillars of family law reform at the OBA. They are: mandatory upfront information sessions, issue identification, less paperwork, more access to free legal advice and ways to resolve issues outside courts. This initiative came out of all the great work done by the bar and bench over many years. It followed the key recommendations that were made, and the OBA and ADR recommendations in their summit.

The reforms are underway and making a difference. Mandatory information sessions are underway in Milton and Brampton. Almost 1000 people have benefited already. We are bringing those sessions to all 17 family court sites by next March 2011, with the rest of the province to follow.

Issue identification is underway in both sites. Additionally, we have worked with Legal Aid to make more free legal advice available in both sites. The Superior Court judiciary has worked with the bar to create a panel of dispute resolution officers, who assist in reaching consent on motions to change.

Justice Infrastructure Renewal

Legal Aid launched six one stop information, legal and mediation assistance family sites - downtown Toronto, Newmarket, North York, Brampton, Sarnia and Chatham. These were supported by the additional legal aid investment we made last year. The goal is to spread these reforms throughout the province. I would like to thank the judiciary and the bar for all their hard work.

Improving the facilities that enable justice to be served is as important as the people who use them. From construction of new, modern and consolidated facilities to the renovations and expansions of a number of others, Ontario’s courthouses are changing just like the system it serves. 14

There are a number of new courthouses being constructed across the province. In St. Thomas, the historic Elgin County courthouse will be incorporated into a new consolidated courthouse to serve the growing community. I recently celebrated the opening of the new Durham Region courthouse last month. Located on a brownfield site in downtown Oshawa , this courthouse is a state-of-the-art facility that consolidates the Superior Court and Ontario Court in a fully accessible building.

Courthouse Renovations and Expansions:

In Thunder Bay, the central business district of Fort William is seeing the construction of a consolidated courthouse. Over this past summer, I took part in a traditional cleansing ceremony to prepare the grounds of the future courthouse. This event brought together Elders from the Advisory Committee and local clergy, including members from the Council of Clergy and the local Ontario Multi-Faith Committee. New consolidated courts in Kitchener/Waterloo and Quinte, and the new Ontario court building at Toronto West, will provide state of the art facilities in those communities.

Renovating and improving our facilities has been ongoing. Sarnia is currently enhancing security at the courthouse, and London, Parry Sound, and Woodstock are seeing retrofitting and expansions to their existing courthouses.

In Sioux Lookout, the newly renovated facility will be one of the busiest satellite courts in the north and will provide services to approximately 15,000 people living in isolated communities linked by air to Sioux Lookout. Almost a dozen other renovation projects have been completed over the past several years. We will continue to improve our courthouse facilities to serve the present and future needs of the community. The Hon. Chris Bentley, MPP, is the Attorney General of Ontario.

December 2010 | Briefly Speaking • En Bref


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

UPDATE QUEEN’S PARK

La réforme du droit de la famille est en cours Chris Bentley La justice doit servir ceux qui en dépendent. Elle doit être plus rapide, plus efficace et plus abordable. Pour ce faire, le droit de la famille fait actuellement l'objet de l'une des réformes les plus profondes des dernières années.

En décembre dernier, j'ai lancé les quatre piliers de la réforme du droit de la famille à l'ABO. En voici les éléments : séances d'information initiales obligatoires, détermination des enjeux, diminution de la paperasse, meilleur accès aux conseils juridiques gratuits et aux moyens de résoudre les problèmes en dehors des tribunaux. Cette initiative n'aurait pas été possible sans le travail exceptionnel, depuis de nombreuses années, du Barreau et de la magistrature assise. Elle a été inspirée par les recommandations-clés qui ont été formulées, et par les recommandations de l'ABO et du PEI faites lors de leur sommet. Les réformes sont en cours et font toute la différence. Des séances d'information obligatoires ont présentement lieu à Milton et Brampton. Près de 1 000 personnes en ont déjà bénéficié. Ces séances seront organisées dans les 17 tribunaux de la famille d'ici mars 2011. Le reste de la province suivra ensuite.

La détermination des enjeux est en cours dans les deux tribunaux. En outre, nous avons travaillé avec l'aide juridique afin que davantage de conseils juridiques gratuits soient disponibles à partir de ces deux tribunaux. L'administration judiciaire de la Cour supérieure a collaboré avec le Barreau pour créer un groupe d'agents de règlement des différends, chargés d'apporter leur soutien à l'atteinte de consentement sur les motions de modification.

L'aide juridique a inauguré six centres intégrés de conseils et de médiation juridiques en droit de la famille : centre-ville de Toronto, Newmarket, North York, Brampton, Sarnia et Chatham. L'établissement de ces centres a été rendu possible grâce à notre investissement supplémentaire en aide juridique, l'an dernier. L'objectif consiste à faire appliquer ces réformes sur l'ensemble de la province. Je souhaite remercier l'administration judiciaire et le Barreau pour leur travail acharné.

Renouvellement de l'infrastructure de justice

L'amélioration des installations permettant que justice soit faite est aussi importante que l'aide aux personnes qui les utilisent. De la construction de nouvelles installations modernes et consolidées jusqu'à la rénovation et l'agrandissement d'autres endroits, les palais de justice de l'Ontario sont en pleine mutation, tout comme le système qu'ils desservent.

Briefly Speaking • En Bref | December 2010

Un certain nombre de nouveaux palais de justice sont en construction dans toute la province. À Saint-Thomas, le palais de justice historique du comté d'Elgin sera incorporé à un nouveau palais de justice conçu pour desservir la communauté en pleine croissance. Le mois dernier, j'ai souligné l'ouverture du nouveau palais de justice de la région de Durham. Bâti sur une friche industrielle au centre-ville d'Oshawa, ce palais de justice est une installation à la fine pointe de la technologie qui rassemble la Cour supérieure et la Cour de justice de l'Ontario dans un édifice totalement accessible.

À Thunder Bay, le quartier central des affaires de Fort William est le théâtre de la construction d'un palais de justice polyvalent. L'été dernier, j'ai participé à une cérémonie de purification traditionnelle dans le cadre de la préparation du terrain du palais de justice à venir. Cet événement a réuni les sages du Comité consultatif et le clergé local, y compris les membres du Conseil du clergé et les autorités locales du Conseil multiconfessionnel ontarien.

De nouveaux tribunaux consolidés à Kitchener/Waterloo et à Quinte ainsi qu'un nouveau bâtiment de justice dans l'ouest de Toronto représentent des installations d'avant-garde pour leur collectivité respective.

Rénovations et agrandissements de palais de justice:

Nous ne cessons jamais de rénover et d'améliorer nos installations. Sarnia améliore actuellement le dispositif de sécurité de son palais de justice, tandis que London, Parry Sound et Woodstock modernisent et agrandissent leur palais de justice. À Sioux Lookout, l'installation nouvellement rénovée sera l'un des tribunaux satellites les plus fréquentés du Nord de l'Ontario, et desservira environ 15 000 personnes vivant dans les communautés isolées reliées à Sioux Lookout par voie aérienne. Près d'une douzaine de projets de rénovation ont été réalisés au cours des dernières années.

Nous continuerons à améliorer nos palais de justice pour répondre aux besoins présents et futurs de notre communauté.

L’hon. Chris Bentley, Député, est Procureur général de l’Ontario

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BEHIND THE BENCH

BEHIND THE BENCH Introducing you to Ontario’s Judiciary Justice Mark Edwards Remarkable Legal Pedigree Jamie Trimble Those who have met Mark Edwards know him as a fearless, formidable insurance defence lawyer. Mark did more trials in the last five years at the bar than most of us will do in our careers. The word is, Mark, in 25 years, has done over 100 civil trials.

Mark's legal pedigree is remarkable. His father was a professor of law at the University of Toronto. His fatherin-law was the late Chief Justice of Ontario, the Honourable Gregory Evans. Mark studied law at Cambridge and Dalhousie universities. With all of this, Mark's becoming a lawyer might have been inevitable. However, his pedigree, alone, does not explain why he was a great lawyer and why he will be a great judge. The truth is that Mark was a great lawyer and will be a great judge with the Superior Court of Justice of Ontario because he is a decent person. Why do I say this?

There is much about Mark that you may not know. First, he is an athlete. In his Cambridge years, he was on the rowing team and the captain of the hockey team. Given Mark's height and slim build, one pictures him as the Ichabod Crane of the rink. Mark's love of hockey is life long. When his children were young, Mark coached boy's hockey, then girl's hockey. He coached kids' soccer, too. He golfs, although some say he is better in his own mind than on the golf course. More recently, Mark played in the annual Shoot for the Cure hockey tournament to raise money for cancer research. Not surprisingly, Mark played for the defence bar team. Not withstanding Mark's false modesty and protestations at having creaky knees and failing vision, the word is he was as formidable a defenceman as he was a defence lawyer. Mark's former partner, Ken Bialkowski suspects that next year, Mark will don the striped jersey, in keeping with his new judicial role.

Second, Mark is one of the unrelentingly kind and gentlemanly people at the bar. Regardless of the issue, all lawyers who meet Mark are struck by his pleasant disposition, his unfailing consideration, and bonhomie. Mark avoids conflict where it is unnecessary, seeks consensus where possible, and is level headed in the most stressful situations. 16

Third, Mark is endearing. You cannot help but like him. He disarms you with his genial manner, at the same time that he skewers your client.

Most of all, Mark is the unintentional master of the mixed metaphor, the slaughtered spoonerism, and the butchered "bon mot". We have all heard them. Ken Bialkowski, at Mark's swearing in, reminded us of some of Marks more memorable turns of phrase like 'as straight as a dime', 'she's arms and legs above the others', 'they get along like oil and vinegar', and my favourite, 'there's no need to rewrite the wheel'. Is this a tool Mark uses to disarm? I doubt it. It's just Mark being Mark. We will miss Mark at the bar, but look forward to his genial, pleasant presence on the bench.

Justice John A. Payne

Triumphant Public Service Joanna Carroll When reflecting upon his early years as a law student at Osgoode Hall and subsequent career as a successful criminal defence lawyer, there can be little doubt to anyone privy to those reflections that Justice John A. Payne has enjoyed a number of professional triumphs that could easily be identified as the pinnacle of his legal career. Justice Payne himself, however, has no difficulty identifying the highlight of that career as his appointment as a judge of the Ontario Court of Justice, very simply for the fact that “being appointed a judge is one of the greatest opportunities for public service for a lawyer.” After completing two years of a Bachelor of Arts degree at the University of Toronto, John, at age 20, was admitted to Osgoode Hall Law School where he completed the intensive criminal law program. He knew from a very young age that he wanted to become a criminal lawyer and that goal became ever more attainable when, during a second year placement at the North York Crown Attorney’s Office, he was quickly assigned to a court and found himself calling the criminal set date docket four out of five days a week. This superlative training lead to an offer of articles with B. Clive Bynoe, Q.C. December 2010 | Briefly Speaking • En Bref


BEHIND THE BENCH

Following his call to the bar in 1987, John looked to Oshawa where he saw great opportunity for a young criminal lawyer – opportunity for an abundance of early hands-on court experience that would not have been available to him in Toronto. He joined a small firm there where he practised exclusively as a criminal defence lawyer. In 1997, 10 years following his call to the bar, John was certified as a specialist by the Law Society of Upper Canada. Two years later, at age 36, he was appointed to the Ontario Court of Justice where he presided almost exclusively in the Central East Region. He later became the local administrative justice for Durham region and was appointed Regional Senior Judge for the Central East Region in September 2004.

In September 2007, Justice Payne was appointed Associate Chief Justice/Coordinator of Justices of the Peace of the Ontario Court of Justice. In this role, Justice Payne advises and assists the Chief Justice generally and specifically on all matters related to justices of the peace. He sits as the de facto chair of the Justices of the Peace Review Council, the body responsible for dealing with complaints regarding justices of the peace and applications for approval for extra remunerative work and requests for accommodation. He is responsible, among many other things, for establishing standards of conduct for justices of the peace as well as the justices of the peace education

plan both of which must then be approved by the Justices of the Peace Review Council. He oversees the administration of the court’s judges in four of the seven regions of the province and 35 per diem judges province wide. In addition, he sits on a variety of court committees including the Canadian Council of Chief Judges. He continues to preside in court as time permits.

Despite having what he describes as an “an interesting but demanding job”, John and his wife Diane of 27 years, with whom he has raised three children, enjoy a very active life outside of the legal world. John sees nearly 75 movies a year and is a “huge hockey fan”, a Leafs seasons ticket holder for the last 15 years, and he and his son Evan have formed a lifelong commitment to visit all 30 of the National Hockey League arenas together. Whether in his role as Associate Chief Justice or father, he is guided always by the advice “do the right thing, not the easy thing”. His advice can be applied to our profession and to young lawyers in particular: preparation is the key to success of every case; be mindful that your reputation is your greatest asset.

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December 2010 | Briefly Speaking • En Bref


CONTINUING PROFESSIONAL DEVELOPMENT

Mandatory CLE is Here Are You Ready? Susannah B. Roth By now, if you are a practising lawyer or paralegal, you should have heard that mandatory continuing legal education – now called continuing professional development (CPD) – is coming for all Ontario lawyers and paralegals as of January 1, 2011. What you might not know is what exactly the new rules require of you. If this is the case for you, read on.

CPD is defined by the Law Society of Upper Canada (LSUC) as the maintenance and enhancement of a lawyer or paralegal’s professional knowledge, skills, attitudes and ethics throughout the individual’s career. As of January 1, 2011, every lawyer (and paralegal) licensed to practise in Ontario must complete 12 hours of CPD each year, three hours of which must be on topics of ethics, professionalism and/or practice management.

The three hours of ethics, professionalism and/or practice management may take the form of stand-alone programs or modules (LSUC has stated that it will be providing free programs on these topics so that all lawyers can be sure of obtaining the necessary ethics, professionalism and/or practice management CPD hours) or they may be part of regular, accredited CPD programs, or other CPD activities (discussed below). The OBA will strive to have as many programs as possible accredited by LSUC to include CPD ethics, professionalism and/or practice management components, in addition to continuing to provide quality programs that will count towards a lawyer’s general CPD hours.

New lawyers must complete 12 hours of accredited CPD per year, for the first two years of practice. All programs for new lawyers must be accredited by LSUC to qualify for their CPD hours. New lawyers can begin to accumulate CPD hours as soon as they are called to the bar, even though their CPD requirement does not commence until January 1st of the year after they are called. Eligible CPD activities are: attending live or “real-time” programs (webcast or telephone conference programs are acceptable as long as participants can ask questions and the speakers/chair can answer them), listening to a program replay with another lawyer/paralegal and discussing the program with them, university/college course participation including distance learning, teaching (qualifies to a maximum of 6 hours/ year), acting as an articling principle or mentoring or being mentored or supervising a paralegal field placement (qualifies to a maximum of six hours/year), writing or editing books or articles (qualifies to a maximum of six hours/year), study group participation, and the educational components of any bar/law association meetings. All of these activities must be on topics which relate to the individual’s practice, which can Briefly Speaking • En Bref | December 2010

include the law in other jurisdictions or non-law topics as long as these topics are related to the individual’s practice.

Teaching (which includes speaking at CPD programs) is accredited on a 1-3 basis – three hours of CPD are credited for every hour of teaching to reflect the teacher’s preparation time. The preparation time itself is considered self-study and does not qualify for CPD hours.

It is important to note that to qualify for CPD ethics, professionalism and/or practice management hours, teaching, writing or study group activities must be accredited in advance. Also, writing and editing activities must be law-related, performed solely by the person claiming the CPD hours, and not undertaken for the purpose of self-use (i.e. the materials produced must be for publication) or for the individual’s professional or personal marketing or business development to qualify for general CPD hours. Teaching or writing activities which are part of the individual’s regular employment or which the individual does full time will not qualify for general CPD hours. Self-study activities such as reading program materials or listening to a program replay alone do not qualify for CPD hours (although self-study hours must be reported on the individual’s yearly LSUC report). Lawyers in the 50% or 25% fee-paying category are exempt from the new CPD requirements. In addition, individuals may obtain partial or full exemptions from CPD requirements in circumstances coming within the Human Rights Code or other circumstances as the LSUC deems appropriate. Reporting of CPD is to be done via the LSUC online member portal. Online reporting can be done at any time, or ongoing as each CPD hour/program is completed, but must be done by December 31st each year. As a member benefit, OBA members can track their CPD hours online using the CBA professional development website. This is made easy with the tracking tool.

Failure to complete CPD hours or reporting will result in an administrative suspension which will continue until the necessary CPD hours are completed and reported. Random CPD audits will be done each year on a certain number of lawyers and paralegals by the LSUC, in the form of a written request for proof of CPD activities. For more information, go to http://rc.lsuc.on.ca/jsp/cpd

Susannah B. Roth, O’Sullivan Estate Lawyers

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POINTS DE JURILINGUISTIQUE ENGLISH EXPRESSION

L’EXPRESSION À EMPLOYER

L’EXPRESSION À ÉVITER

House break-in, home invasion

pénétrer, s’introduire dans une maison par effraction

entrer dans une maison par infraction

Duly incorporated company

société régulièrement constituée

companie dûment incorporée

To quash, to set aside a judgment or decision

annuler un jugement / décision

renverser un jugement / décision

Criminal record

casier judiciaire

dossier criminel

Merits of an argument

bien-fondé d’un argument

mérite d’un argument

Exclude (a piece) of evidence

exclure un élément de preuve; écarter un élément de preuve; déclarer un élément de preuve inadmissible

déclarer un élément de preuve irrecevable

Consent judgment

jugement d’accord, jugement convenu

jugement [de consentement]

To be appointed to the bench

accéder à la magistrature, être nommé(e) juge, entrer dans la magistrature

monter sur le banc

To schedule a hearing

fixer la date d`une audience

céduler une audition

Contempt of court

outrage au tribunal

mépris de cour

Reproduit du bouquin Expressions juridiques en un clin d`œil avec la permission généreuse des auteurs, Louis Beaudoin et Madeleine Mailhot, et de la maison de publication Les Éditions Yvon Blais Inc. dont le catalogue se trouve à www.editionsyvonblais.com.

OBA Board Makes ALERT Charity of Choice The OBA Board of Directors voted to make ALERT (Advancement of Legal Education and Research Trust) the charity of choice in honouring the participation of guest speakers at OBA events and CLE programs. In the past the OBA would make a donation on behalf of a guest speaker to a variety of charitable organizations. Recently it was decided by the Board in consultation with many past participants in CLE programs that that money would best be directed to ALERT. ALERT is of course the charitable foundation of the OBA with a mandate to further legal education so it seemed appropriate for those helping to provide professional education to our membership that their efforts be recognized by a donation to the foundation.

More on ALERT see page 34.

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December 2010 | Briefly Speaking • En Bref


Why Can't We Be Friends? OBA is Launching Social Media Platform Filippo Conte

B

efriending, tweeting (as in the bird sound), posting and liking have taken on additional definitions in recent years as social media has knocked out even e-mail as the fastest growing communication outlet.

New to social media? The OBA will help get you started. Plan to attend the OBA’s social media webinar taking place in early December. For further information, please contact Filippo Conte at fconte@oba.org or at 1-800-668-8900 ext. 346.

Whether you’re an active Facebook user or if you Tweet or not, you’ve heard the terms, and know that the person sitting next to you frantically tapping their phone on the train, or your colleague roaring with laughter and calling you over to their computer, is posting to their Facebook status. They’re telling their friends about the cold rainy day outside - bring an umbrella, or that they just saw the funniest cat “singing” on Youtube. As humans, we need and want community; through its ease at connecting you to your colleagues and friends, not to mention places and things you find interesting, social media engages people of all ages. Corporate social media fills the communication gap between a company and its clients or potential clients. Through the OBA firms, including Gowlings, numerous sole and small firm practitioners, the CBA and ALERT, use social media platforms such as YouTube to provide valuable information to the public at large. The benefit - exposure, client recruitment, information dissemination and overall promotion – comes at little or no cost.

Another notable benefit of social media is the ability to curate involvement non-intrusively and to include personal preferences and interests. For example, you can befriend, become a fan or follower of people or companies, and receive their updates, photos and videos. This provides you with your own curated news feed while still allowing you to outline your own privacy and security settings.

After the successful launch of ALERT’s cJustice Video Library on Youtube, the next step for us is to engage with our membership through Facebook and LinkedIn groups and event pages, allowing the OBA to communicate important information in real time, while facilitating member networking and sharing. Join us on Facebook and LinkedIn now and hear what’s new in the profession, learn about our advocacy, programs, events and special member offers. And speak to us. Briefly Speaking • En Bref | December 2010

21


JUST FOR LAUGHS

Go Ahead... Stuff Your Face! Marcel Strigberger

T

here is a dearth of law on salad bars. The number of establishments offering all you can eat salad bars (AYCESB) is forever increasing, yet the public is at a loss as to its rights with respect thereto. If a restaurant offers you an AYCESB, when does the right to return for a further helping terminate? These and other questions must be answered in order to avoid chaos. I have studied the situation. There is anything but uniformity in the way the police and the courts deal with salad bar offences.

In Belleville, one Jack Lashley entered an Overback Steak House and consumed a steak and a serving of AYCESB. He had his hat and coat on and was about to leave when he decided to return to the salad bar and grab a carrot stick to nibble on for the road. He was arrested by two off-duty Ontario Provincial Police constables and charged with theft under $200.00.

The presiding Judge convicted Lashley. In his reasons his Honour Hoss J. said: The moment Lashley put on his hat he was telling the world, 'I've had enough; I can't eat anymore. He was crossing the Rubicon.

Shortly thereafter, one Pete Barnes finished a fish dinner at the Happy Lobster in Welland. His meal included the AYCESB. He put on his coat and left the premises. A few moments later he remembered that he had forgotten his hat. He returned and holding his hat in one hand he approached the AYCESB and nibbled on a raw mushroom. The restaurant manager Joe Leblanc observed the incident and lunged at Barnes whereupon Barnes whacked Leblanc across the face with a celery stick.

Barnes was charged with theft under $200.00 and possession of a dangerous weapon. His Honour Moose J. threw out the theft charge. In his reasons, the learned judge said: Unlike the Lashley case, the accused herein did not wear his hat. Merely putting his coat on, hat still in hand, is not a sufficient actus reus from which I could infer that Barnes could eat no more.

Citing Horsley on Hats, 4th Edition, the learned judge went on to say: The law is clear on this point. When a man takes off his hat in a restaurant, he is telling everyone he is hungry. The situation is different if he takes off his kilt.

22

With respect to the weapons charge however, His Honour convicted Barnes giving him a suspended sentence and prohibiting him from carrying any celery for two years.

The question is what happens when there are no hats involved? Unlike the rest of Ontario, Torontonians are less likely to wear hats unless they live in Scarborough, where there is a preponderance of Goodyear and Champion Spark Plug caps. In the recent McDermott case the accused had left Big Mother's Diner in Brampton with his wife Barbie. He drove approximately one half hour when he realized that he had forgotten his five-year-old son Rick at the restaurant. McDermott returned to Big Mother's around an hour later, stopping for a couple of beers along the way. When they arrived, they found Rick still at the salad bar where they had left him, playing tiddlywinks with the cucumber slices. McDermott went over to the AYCESB and started catching the cucumber slices with his mouth as Rick was flipping them into the air. Barbie egged him on saying she'd give him a dime for every slice he caught.

McDermott, his wife and Rick were observed by an undercover Peel Regional Police officer who had been staking out the restaurant (no pun intended). The matter came before the Court in Brampton where Mr. and Mrs. McDermott were charged with a number of offences including conspiracy to commit theft under $200.00 and operating a gaming house. They were also charged with contravening a Brampton By-law, to wit, playing tiddlywinks in a family restaurant knowing that there is nude dancing going on in the restaurant next door.

We don't know what will happen in this one as the trial date at Brampton has been set for January 17, 2014. An early date was indeed selected as the McDermotts have been denied bail. The boy, whose name I cannot divulge any more at this stage, was let off with a caution. It is evident that the law is in a state of flux. It is expected that confusion and disarray will continue until Parliament stops wasting its time with proposed legislation dealing with terrorism or money laundering and other jejune laws and pushes through the long awaited Bill C-303, being the Salad Bar Act. Marcel Strigberger is a humourist trapped inside the body of a civil litigation lawyer – see www.legalhumour.com

December 2010 | Briefly Speaking • En Bref


Civil Fraud Claims in Ontario Proceed with Care James Morton

C

ivil fraud claims are more common than ever before. Fairly recent changes to the law

have made proof of fraud easier -- although it is still not easy -- and the general inclination to pursue all reasonably available claims has increased the number of claims sounding in fraud. That said, allegations of fraud must be pursued with care. There are serious cost consequences for unfounded allegations of fraud and proof of such claims is not easy. Additionally, often otherwise valid claims for fraud are made against defendants who are judgment proof and a realistic approach to whether a claim is worth pursuing must be taken.

Certain procedural requirements apply to fraud (or other misrepresentation) claims. Full particulars of the fraud, where, when and how it was made, together with a statement of it falsity and damages resulting there from must be pleaded: Rule 25.06, Lana v. Menasco, [1996] O.J. No 1448 Until fairly recently the general consensus was that civil fraud claims (and other allegations of moral turpitude) had to be proven to a higher level than the usual civil balance of probabilities. While the burden was not so high as to be beyond reasonable doubt the sense that fraud had to be strictly proven was widespread. That view was dispelled in F.H. v. McDougall, 2008 SCC 53. The Court held the civil standard of proof applies to all civil claims. That said, the Court also suggested the trier of fact must be mindful of the mysterious "inherent" probabilities or improbabilities. What that actually means is unclear except to suggest that proof of fraud still remains difficult. The key passage in the case reads:

there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.

One way civil fraud is more easily proven is where there is a criminal conviction for fraud. If there is a finding after trial that finding will bind the civil court: F., K. (Litigation guardian of) v. White, 2001 CanLII 24020. If there is a guilty plea that plea will normally be dispositive unless good reason is set out to explain why it should be ignored: Andreadis v. Pinto, 2009 CanLII 50220 (ON S.C.). Of course, the verdict or plea only goes so far as the facts proven or admitted. If there is a plea to a fraud for $5,000 that will not support (except to a limited degree) a civil claim for $500,000. One principle that has not changed is costs in a fraud case. In general, costs where fraud is alleged are on a full indemnity basis. If fraud is proven the costs are full indemnity to the plaintiff, unless the facts are such as to make the allegations, though unproven, still appropriate: Hamilton v. Open Window, [2003] S.C.J. No. 72. If fraud fails the defendant generally gets full indemnity costs: Reno v. Wonderland [2008] O.J. No 4678.

James Morton is a lawyer is Steinberg Morton Hope & Israel LLP, where he practises litigation

‌ evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again,

Briefly Speaking • En Bref | December 2010

23


Left to right: Amanda Graham, Kimberly Sewell, Tod Ward, Jason Ward, Paul Gough, Emily Carere, Melissa Morrison

Scaring Up Good Will for the Legal Profession Jon Clancy

W

orking with a lawyer shouldn’t be a scary experience. But, in Lindsay, it’s become downright terrifying thanks to the annual Wards LLP Haunt Your Home contest.

The contest, which just wrapped up its second year, encourages residents in and around Lindsay to be their “hauntingly creative selves” as they decorate their homes for the arrival of ghosts, goblins and vampires at their doorsteps on All Hallows’ Eve. The most haunting of all receives a $10,000 prize and a year’s worth of bragging rights around town. Jason and his wife Carrissa, who is also a partner at Wards LLP, moved to Lindsay in 2003. At the time both were happily practising at large Toronto Firms. Jason was at Ogilvy Renault LLP and Carissa was at Osler Hoskin & Harcourt LLP.

Having grown up in Lindsay, in 2003 Jason sought election as the area MPP for the Ontario Liberal Party. Meanwhile Carissa was making the daily commute from Kawartha Lakes to Bay Street. With the provincial seat as his focus and still working four days a week for Ogilvy Renault, Jason hadn’t considered life after the election. However when the Tories reclaimed the seat, Jason and Carissa made the tough decision to leave their downtown Toronto practices to set up their own firm in Lindsay.

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Things weren’t easy in the beginning. He spent 16 hours working on a matter for his first client, but could only justify billing him $250. To give the impression of a professional looking shop, Jason had a dummy computer on his desk. Carissa was taking some well deserved time-off to spend with their

newborn, so Jason was largely on his own; a big change from the internal support network within a Bay Street firm. Since then, Wards LLP has grown into one of the largest firms in Lindsay, employing three lawyers and six support staff, all of whom share in the planning of the annual haunt fest that bears the company name.

“I've changed my view of lawyers”-public citizen As their practice grew, the Wards began searching for a way to give back to their community and raise money for local charities. They were adamant that they didn’t want to simply write a cheque. As Jason put it “we wanted to do something more proactive and raise more than we otherwise could have on our own.” Their inspiration came in 2008 after the Halloween display at their home was profiled by the local newspaper. They were struck with the idea of holding a “giant Halloween contest that also raised money for charity.” As Jason said, “there was this gap between the end of summer and Christmas when nothing happened. So we said, let’s seize October.” Once they agreed on the idea, the planning began.

When you walk into Wards LLP, it’s inescapable that family is immensely important to Jason and Carissa. Framed artwork December 2010 | Briefly Speaking • En Bref


by their three children, ages two, five and seven, hand proudly in reception. An entire 10-foot-high wall in Jason’s office is covered floor to ceiling with family photos. Not surprisingly, pulling off a massive charitable endeavour was destined to be a family affair.

It was agreed that the heart of the contest had to be web based. A place where people enter the contest, learn about the prizes and vote for the winner. To accomplish this Jason turned to his brother Tod Ward, Lead Designer at webMade also based out of Lindsay. Together they created what has to be one of the most dynamic online homes any community contest has ever seen. Visitors to hauntyourhome.ca can upload photos and videos, interact with entrants and ultimately vote for the winning design. You can branch off to their Facebook page, check out their YouTube channel or follow them on Twitter. In its first year, the webpage logged over 350,000 page views and 20,000 visitors from 45 countries around the world. Impressive numbers for a community contest in small town Ontario.

In 2009, the contest itself started out with three categories Best Haunted House, Best Haunted Business and Best Haunted School. A top prize of $10,000 served as the purse for the first place winner in the Best Haunted House category. Half of the prize money was given to the winning entrant and the other half donated on the winner’s behalf, and in their name, to the Boys and Girls Club of Kawartha Lakes. This amounted to more than $9,000 for the Boys and Girls Club in 2009. While all the 2010 numbers have yet to been tallied, the Wards are aiming to double the donation to $18,000 this year. In addition to doubling the prize money, the Wards have doubled the number prize categories. New for 2010 was Best Kids Costume, Best Pumpkin and Best Haunted Classroom.

The contest took the community by storm. In the first year, more than 100 homes entered the contest. In 2010, they expected to have over 200 entrants. Entrants posted photos and YouTube videos to promote their home. They encouraged their friends,

Melissa Morrison, Jason Ward, Tod Ward

Briefly Speaking • En Bref | December 2010

family and most likely anyone who had a computer with an internet connection to vote for their eerie abode. The event had the town and all of Kawartha Lakes brewing with excitement.

The Albert Street Lab, winner of the inaugural contest, took the mad scientist theme to new heights. Corpses, zombies and monsters roamed through a terrifying laboratory home to a scientist that had clearly drank a little too much of Dr. Jekyll’s potion. The feedback on their website tells the story. One poster wrote "Way to go, Wards, for raising that good old fashioned

“20,000 visitors 45 countries”

Halloween spirit! Yeah, for Lindsay”. Another added: "Thank you so much for what you are doing. I hope you know how wonderful this is for the people who live in Lindsay. You guys are great.”

The event has also shed a different light on the legal profession. One of the comments Jason is proudest of reads: "I've changed my view of lawyers because of it. Thanks.”

He points out that for most people they see lawyers through advertisements for their firm or practice. This was an opportunity to show his firm and his profession in a “friendly, engaging and family oriented way.” When asked if he thought a community event like this would change the way the public thought about lawyers, without hesitation Jason replied, “Yes, I did.” In Lindsay there is an extraordinary ghost story being told about a law firm on Kent Street and Jason, Carissa and the Wards LLP team are to thank for it. Jon Clancy is Manager of Media Relation and Website Content for the Ontario Bar Association.

Zombie, Jason Ward

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Putting Time On Your Side Nancy E. Cooper

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he modern world offers many ways to squeeze more productivity into a single workday. Why is it then that so many of us still gripe about our shortage of time? “Where did the time go?” we ask ourselves as we race off to our next appointment. We suffer enormous stress daily, steaming under the pressure of the big Time Crunch. Dave Mather is someone who knows a thing or two about the issues of time and productivity. He has been involved in the industry of business development and performance improvement as a senior partner at Dale Carnegie Business Group, operating the franchise throughout Ontario, Quebec and the Maritime provinces. “Time management is the most requested seminar that we have,” Dave states as our interview begins. “It’s consistently been something that individuals, managers and business owners want to learn more about.”

NC: In terms of business growth and business management, time management itself must be pretty fundamental. DAVE MATHER: When I deal with clients, they almost always bring it up. We try to go a little bit deeper because the problem of time management is really a symptom of some other things. There are some primary misconceptions about time and time management. We start with their mind-set and then go on to time utilization techniques. I find that techniques are pretty useless if the person hasn’t really made some fundamental choices around time. It really works well when people relate to time differently.

What is the most common hurdle to effective time management? People tell themselves, “I don’t have time,” “I wish there was more time,” “there’s no time for this” and so on. Mind-set shift number one: You have all the time there is. Nobody can dispute that fact. We have all the time there is. That shifts a person’s relationship to time. Once we come to grips with the fact that we have all the time there is, the next step is looking at how we can maximize time utilization. That’s a very different position than “I don’t have enough time.” 26

How do people react to that new perspective on time? Not everybody likes it at first. Some people get defensive because they’ve used that excuse for so long. You’re kicking the crutches out from under them. We’re doing it in a respectful way but it is really important that we accept the fact that we do have all the time there is.

“Make clear choices and act on them”

What is the single most important skill that we can learn that would significantly increase our productivity? Make clear choices and act on them. Life is about choices. People may intellectually and easily accept that proposition but then you hear people saying, “I have to do this”, “I have to do that”, “I have to go to the gym.” They don’t have to do anything, really. But there are consequences to their choices. An old Chinese proverb says that it’s really more about what to say no to. What do we say “No” to? If we have unclear or vague goals then we’ll say yes to far more things than we can do and we may say no to the very things that could really help us.

How important is technology to the process? In other words, is it still possible to be a good time manager without the use of technology?

Overall, adding technology has not made us more effective or efficient. Technology has the potential to make us even less effective. That said, it is a tool and an excellent one. We have the Blackberry, we have the iPhone, Outlook and so on. We have tools, that, when properly used, you would think we would get more done, be more focused. Often, we’re not. We’re probably even less focused. It takes discipline and learning how to effectively use the tools viable. Rather than having the tool run me, I use the tool to effectively achieve my objectives. For example, you can choose not to be accessible during certain times. December 2010 | Briefly Speaking • En Bref


What is your favorite tool or application for time management? My favorite tool is a blog. It’s amazing. You can actually talk to people without having called them one at a time. I like email in terms of communicating with people with whom I have a relationship because they don’t have to be there and talk to me. I can just send them quick messages. I love the tool but I find it relatively ineffective trying to communicate with people who don’t know me and I don’t know them. We have nothing in common, we’re not connected. In that sense, e-mail is not at all effective.

What kind of process is involved in changing old habits and learning to be more productive?

There is a process that we’ve used in Dale Carnegie for a long time. It begins with a mind-set of “I want to.” Typically, people want to have a productive life, they want to raise their kids, they want to do the best they can to produce something of real value. There may be exceptions but a high percentage of people want to do more. What gets in their way is not believing they can, or they operate under a world-view or misconceptions that get in their way. But it does begin with a genuine desire to do more with the time they have available.

What factors in our environment can affect our use of time?

a distraction. There are a lot of things vying for our time and attention. So, today, it’s necessary more than ever to be disciplined and focused.

Are you for or against “multi-tasking” as a time management tool?

Some people claim to be effective multi-taskers. In business, more often than not, multi-tasking is a myth. Typically, multitasking dissipates focus.

Most people have no relationship to the reality of time. They guess at it. Ask them how they spend their time and they’ll say, “I spent about an hour here, 15 minutes there.” Time management is about focus. Wherever you are, be there. Time-masters know where their time goes, others guess. Dave Mather is a senior partner and corporate specialist in Dale Carnegie Business Group and has been with the organization for forty years. He can be contacted at 1-800-361-2032, Ext. 257 or by email at dmather@dalecarnegie.ca. Read his blog at http://davemathersblog.blogspot.com.

Nancy E. Cooper is a sole practitioner with a criminal law practice in Timmins.

Mostly distractions. This goes back to focus. Other people can be a distraction. Technology can be a distraction. Media is STG_OBA_hfpg_287c_09_09

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Under Siege Best Practices to Ensure Your Safety Jeffrey S. Percival

A

s Ontario lawyers, we have a duty to act honourably and fearlessly on behalf of our clients in accordance with the Rules of Professional Conduct.

Sometimes, however, our role as the gatekeepers to the justice system triggers reactions in others who may see the actions of lawyers as part of their problem rather than a solution to their problems. In extreme cases, lawyers can become the target of others who are involved in the legal process.

In 2005, in response to concerns of lawyers as to their personal safety and how best to protect it, the OBA created the Lawyer Safety Taskforce, chaired by John McMunagle. The mandate of the taskforce was to develop a risk assessment protocol. The taskforce, with assistance from various police services, governments and security professionals, created the handbook to assist lawyers in minimizing the risks to themselves and their families. In 2009 the OBA published an updated version of the handbook to reflect the changing nature of risk brought about by ever-evolving technologies. The handbook offers guidance on how lawyers, their families, friends and colleagues can minimize their risks to personal safety.

In most cases, disruptive behaviour such as anger can be dissipated through attentive listening and remaining calm. As lawyers, we are there to assist in solving problems or, at the very least, to try to refer the agitated person to appropriate resources. However, in more extreme circumstances, the disruptive behaviour can escalate into harassment or intimidation of the lawyer or others close to the lawyer. When a person knowingly engages in conduct that causes another person to reasonably fear for his/her safety or that of someone else, such conduct 28

may constitute criminal harassment under the Criminal Code. Such harassment may take place as a result of conflict either directly or indirectly as may occur in a work environment. With criminal harassment, the aggressor is looking for a reaction. If their actions bring about the anticipated reaction of fear, this reaction further stokes the aggression and the harassment may continue. If the aggressor does not get the anticipate reaction, there is a strong possibility that the harassment will abate. Prohibited conduct involving harassment or intimidation rarely escalates to actual physical violence. Rather, the aggressor aims to assert control or gain vengeance by creating fear on the part of the target. They use the element of surprise to maximize the impact of their actions and closely monitor the reaction to see if the target exhibits fear or anger. In such situations, the target must control their emotions as much as possible. They can do this by •

Remaining calm

Safely distancing themselves if she or he feels an immediate threat to her/his person or someone else, which may include warning the other person if possible)

• • •

Quickly assessing the situation

If the actions of the aggressor do not represent an immediate threat, not displaying one’s own emotions, documenting the event(s), protecting evidence and contacting the appropriate authorities It is vitally important that a target of criminal harassment or intimidation not ignore or show defiance to the aggressor, as this may simply escalate the situation.

December 2010 | Briefly Speaking • En Bref


• • • •

• • • • • •

Certain best security practices should be followed in order to deter, to the extent possible, these types of crimes. These practices include Providing personal information (home telephone number and address, information regarding one’s children, travel plans, etc.) to a select number of people on a need-toknow basis Being careful of what you or members of your family write or post on the Internet (e.g., Facebook) or in e-mail communications

Not discarding written material (letters, medication containers, bank statements, computer disks, photographs, etc.) containing personal information in a garbage container or non-shredded recycling container where it can be easily retrieved. Instead, shred the information yourself or dispose of it in a collective shredding container at work Avoiding the use of personalized license plates, particularly ones referring to the legal profession Using voice-mail or an answering machine capable of recording threatening calls Using an unlisted telephone number, if warranted

Carrying a mobile phone with pre-programmed emergency numbers or a radio transmitter

Making use of physical security measures at work (e.g. security staff, cameras, escorting of visitors, following strict practices regarding suspicious packages) Engaging in enhanced physical security at home (e.g. solid doors, alarm system, dead bolts, exterior lighting, opaque blinds, etc.)

Briefly Speaking • En Bref | December 2010

Using easily accessible and well-lit parking facilities equipped with an attendant and surveillance monitoring equipment

Enlisting neighbours to help in reporting any suspicious activities

• • •

Making use of a car alarm, remote starter, remote door locking/unlocking devices with interior light activation

Identifying alternate exits and “safe havens” such as police stations, 24-hour stores and friends where you can go for assistance and shelter if physically threatened Establishing procedures in case a suspicious parcel or object is left outside your door or near your car

While it bears repeating that the incidence of actual violence towards lawyers is very rare, Ontario lawyers can minimize their risks further by taking proactive steps to ensure the personal safety of themselves and their family, friends and associates. For further information on protecting yourself as a lawyer, please consult the OBA’s Personal Security Handbook, which can be obtained by contacting the OBA directly or by visiting the website: http://www.oba.org/en/pdf/obapersonalsecurityintro.pdf.

Jeffrey S. Percival, Ogilvy Renault LLP

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December 2010 | Briefly Speaking • En Bref


“Think Twice”

“Think Twice”

Some cautionary advice for lawyers who engage in Internet-based social networking with clients and former clients J. Andrew Sprague The commercial, and critical, success of the October 2010 theatrical movie “The Social Network” serves as yet

another example of how much Internet-based social networking has become a part of our social conscience. Most lawyers have heard of social networking websites, such as Facebook®, LinkedIn®, and Twitter®, some may know what purposes these websites are seeking to achieve, and some may even be active participants on one or more social networking web sites. While numerous articles have been written over the past couple of years extolling the benefits of engagement in Internetbased social networking, there are some important considerations that lawyers should be mindful of.

Integrity is Fundamental

The success of social networking websites is based, in part, on the fact that users are able to connect with each other and share information about themselves. A lawyer may be contacted by a client or former client and be asked to establish a direct on-line connection with such individual. While the decision of whether or not to connect with a client or former client is a personal one to be made by each individual lawyer, he or she may wish to give thought to the following:

1. If a lawyer chooses to connect with some clients or former clients but not others, what intended and unintended message(s) does that send to each group? A lawyer should consider whether it is appropriate to segregate, in an on-line environment, between groups of clients or former clients;

2. What information or content (i.e., photographs, videos) will be viewable? Is this information or content appropriate for clients or former clients to see? Does the information or content enhance the professional reputation of the lawyer? If the information or content diminishes, or has the potential to diminish, Briefly Speaking • En Bref | December 2010

the professional reputation of the lawyer, should that information or content be available to clients or former clients?; and

3. What limits is a lawyer willing to impose upon his or her online communications with clients and former clients, as well as with other individuals whose communications may be available to clients or former clients?

Considerations under the Rules of Professional Conduct

Under the Law Society of Upper Canada’s Rules of Professional Conduct, lawyers are required to “conduct himself or herself in such a way as to maintain the integrity of the profession". (Rule 6.01(1)) The Law Society further notes in its Commentary to this rule that: "Integrity is the fundamental quality of any person who seeks to practice as a lawyer. ..... If integrity is lacking, the lawyer's usefulness to the client and reputation within the profession will be destroyed regardless of how competent the lawyer may be. Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer's irresponsible conduct. Accordingly, a lawyer's conduct should reflect credit on the legal profession, inspire the confidence, respect and trust of clients and the community, and avoid even the appearance of impropriety”. If a lawyer decides to participate in Internet-based social networking websites, he or she should be mindful of his or her obligations under the Rules, including the obligation to engage in appropriate conduct. It should be remembered that appropriate conduct also includes his or her obligations in respect of sexual harassment, which are detailed in Rule 5.03.

Saying “No”

A lawyer may, after weighing the various benefits and draw backs of participating in Internet-based social networking websites, decide that he or she does not wish to participate; however, 31


a client or former client may expect the lawyer to be a part of their Internet-based social networking community.

A lawyer should give thought on how he or she can politely express to the client or former client that he or she has decided not to participate. Unfortunately, some clients or former clients might take offence to a lawyer’s reluctance to connect with him or her in an online environment and developing an approach that minimizes a client or former client’s potential to take offence would be beneficial for all parties involved.

advance. It is often said that it is best to keep these relationships on a professional level.

While social networking web sites do have some appeal to them, lawyers should bear in mind when using these web sites that their conduct should always remain within the boundaries of client-lawyer relations, they should act professionally and keep the interests of the profession in mind. J. Andrew Sprague is a lawyer with Miller Thomson LLP. He is also a member of the Editorial Board of Briefly Speaking, and is the Public Affairs Liaison for the Information Technology and Electronic Commerce Section of the Ontario Bar Association

If a flirtatious or sexual advance is made by a client or former client through an Internet-based social networking website, it would be in a lawyer’s better interests not to respond to such

INSTITUTE2011

FEB 3–5 ROYAL YORK TVO’s Steve Paikin to Deliver Keynote Filippo Conte

T

he OBA’s annual legal conference powerhouse, Institute 2011, is Ontario’s essential legal conference, and your destination to maximize your professional development hours and money. With a keynote speech from notable journalist Steve Paikin, more than 260 speakers facilitating the 25 practice area-based programs, a more flexible program format and price, free access to some 150 program materials, Institute has much to offer.

The OBA has listened to your suggestions and, with the exception of the family law and criminal justice full-day programs, is providing half-day programs that qualify for your Law Society of Upper Canada Certified Specialist hours and LawPro Premium Credits.

Over the three days of Institute, you will be able to count 12 hours toward the Continuing Professional Development (CPD) requirement by taking just three programs. We also anticipate that by participating in one of our programs you will satisfy one of the three required CPD professionalism credit hours.

“By listening to what members said last year, we’ve focused on half-day programs that maximize your time, and therefore billable hours, by allowing you to take part in up to four courses over two days,” said Janice Vauthier of Thunder Bay, co-chair of the volunteer lead Institute 2011 Committee. She continued, “One of our goals is to provide attendees with the most product and value for their time at $295 per course registration fee.” This year’s keynote address will be by author and broadcaster Steve Paikin, on Thursday morning at 8:30. We are honoured to 32

have Mr. Paikin, who, through his daily TVO program The Agenda, has interviewed some of world’s highest profile, enlightened and sometimes controversial business leaders, politicians and authors. We look forward to an enthralling and thought-provoking session.

“The OBA’s practice section focus is a major benefit for attendees,” said Andrew Pinto of Toronto, who, along with Janice Vauthier, co-chairs the 2011 Institute Committee. “Whether you’re a new call or a seasoned practitioner, the practice section focus of each program ensures essential information is covered in each course. If there is a new practice approach or political development emerging, you can be sure that it will be included in your program along with the most crucial points.”

This year, over 25 sections and a committee are represented via the 24 programs, two special breakfasts; one organized by the Official Languages Committee and another by the Sole, Small Firm and General Practice Section and the Young Lawyers’ Division luncheon. Added benefits of registration include a networking lunch on the day(s) of your program(s), as well as a special welcome reception from 5pm to 7pm on Thursday. We also encourage you to take advantage of free access to all program materials, some 150 materials in total, via the OBA’s dedicated Institute 2011 website – saving you the $50 binder fee per course. A walk through Institute’s legal tradeshow and visit the 20 exhibitors and sponsors from the top legally affiliated organizations and will provide you with innovative resources, valuable information and further contacts in the profession.

December 2010 | Briefly Speaking • En Bref


Just across from Union Station and with access to ample parking; connections to Toronto City Airport and Pearson International Airport, the Royal York Hotel provides the perfect refuge a day of programs and networking. Take advantage of the early bird room rate of $99; book by Friday, January 7, 2011. After this date room rates are offered at the special OBA price of $199. Make it a weekend getaway in Toronto by visiting friends or family, seeing a show or concert, or perusing the many shops, museums and galleries. Explore your options and learn how Institute 2011 can ensure for you maximize your annual legal education needs.

Visit www.oba.org/institute2011

Join the Institute 2011 conversation on Facebook.com/institute2011 and LinkedIn. Filippo Conte is the Bilingual Communications Specialist and Staff Writer for the OBA; where he brings his extensive background in linguistics, public relations and journalism to his role in OBA Francophone and communications activities as well as to managing special outreach programs (including Law Day) and social media initiatives.

YOUR INSTITUTE Make the most of your Institute 2011. Whether you practise locally, are taking advantage of the special room rates at the Royal York, or are coming in just for one program you may choose: THURSDAY’S OPTIONS Take part in Steve Paikin’s keynote address on at 8:30 am then head to your morning half-day program or explore our 20 exhibitors and sponsors at our legal profession tradeshow. If you’re staying onsite, your program will end just in time for your networking lunch, which you can follow with another half-day program, a walk through the tradeshow and our exclusive Welcome Reception and comedy event from 5 to 7 pm. FRIDAY’S OPTIONS The weekend is almost here so start your morning with one of Institute’s special breakfasts; one organized by the Official Languages Committee another by the Sole, Small Firm and General Practice Section at 7:45 am. Follow this with your morning halfday program, networking lunch, or YLD lunch, stroll through the tradeshow and Friday afternoon half-day program. Suddenly, the weekend has arrived, and you can be satisfied that you’ve had a productive and cost effective couple of Institute experience.

Briefly Speaking • En Bref | December 2010

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ALERT Video Library Helps Public Understand Justice System In late September, the Advancement of Legal Education and Research Trust (ALERT), the charitable arm of the OBA, launched a bilingual online video library to help the public better understand the law and Ontario’s justice system. The first series of videos, available in the ALERT cJustice Video Library (www.youtube.com/user/alertoba), covers the Small Claims Court and pensions and benefits law. “Our justice system can be very intimidating to anyone who finds themselves involved in it for the first time,” says James O’Brien, chair of ALERT. “These videos help make our legal system more accessible to the public by providing them with a better understanding of how common issues are handled and what they can expect when they are dealing with them.”

Expertise. Independence. Objectivity. Three words when looking for the right firm: Cohen Hamilton Steger

How to make a claim and fill out the claim form

Defending a claim

• • • •

Serving a claim

Settlement conferences Going to trial

Enforcing an order

Employees and employers are the target audience for the series of videos on pensions and benefits law. These videos address common issues that members of the OBA Pensions and Benefits Section see on a regular basis in their practice. Topics covered include saving for retirement under defined contribution pension plans, rules surrounding access to pension benefits, pension division issues on marriage breakdown, and more.

“Pensions can be the most valuable asset one has, so the interest and concern regarding ownership and protection of that asset should come as no surprise. At the same time, pensions are subject to a variety of rules and laws that are not always easy to understand. This can result in a variety of legal issues and at times litigation,” said Karen Kahansky, who led the development of the five pensions and benefits videos released by ALERT. “These videos will give employers and employees some important background on the most common issues and disputes that arise in this complex and important area of law.”

Farley Cohen • Ross Hamilton • Peter Steger • Paula Frederick • Prem Lobo

cohenhamiltonsteger.com 416 304 1595

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“Don’t let the name fool you; going to Small Claims Court is a big deal for the vast majority of people who start or defend a claim,” said Morton. “These videos should give individuals entering this court process a basic understanding of what to expect as the process unfolds.”

Three words when looking for the right expert in damages quantification, business valuation and forensic accounting:

OBA Briefly Speaking ad_Final.indd 1

Toronto lawyer and past president of the OBA James Morton, walks viewers through the Ontario Small Claims Court in a six-part series that provides viewers with a comprehensive overview of what to expect when you commence or defend a matter in this court. These videos were developed in consultation with lawyers and other experts who work and practise in this area. Topics covered in these videos include:

10-10-01 10:10 AM

The video library will continue to grow and cover new topics in the coming months. And, existing videos will be reviewed periodically to ensure they remain current and accurate to the law.

December 2010 | Briefly Speaking • En Bref


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SNAPSHOTS

Civil Litigation Award Gala On September 29th 2010, the OBA’s Civil Litigation Section donned their sharpest suits and united at the Royal York Hotel to honour this year’s Award of Excellence recipient, Bonnie Tough pictured top right. Also attending were Attorney General Chris Bentley (below) with Justice Heather McGee. You will have to sort out the rest for yourselves.

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Bonnie Tough

December December 2010 | Briefly Speaking • En Bref


SNAPSHOTS

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SNAPSHOTS

Fall Council In October, OBA Council and the Board of Directors welcomed new president Lee Akazaki and discussed association governance issues at the annual fall council meeting, held at Taboo resort in Muskoka.

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December 2010 | Briefly Speaking • En Bref


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SNAPSHOTS

New Calls To the Bar Reception On November 1st, the OBA along with special guests Attorney General Chris Bentley, Chief Justice Heather Smith and Chief Justice Annemarie Bonkalo hosted the annual New Calls to the Bar Reception, welcoming the province’s newest lawyers to the profession.

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December 2010 | Briefly Speaking • En Bref


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SNAPSHOTS

Home Court Advantage Based on the 2009 Home Court Advantage conference, this autumn the OBA, ADR Institue of Onatrio, and the Ontario Association for Family Mediation hosted a press conference to present Attorney General Chris Bentley with a report recommending changes to Ontario’s family law process.

Chris Bentley joins Lee Akazaki (far left), Barbara Landeau

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December 2010 | Briefly Speaking • En Bref


We’re trying something new at Briefly Speaking with a

Letters to the Editor section that lets

you, our readers, have your say about the editorial content and direction of the official magazine of the OBA.

DAY 2011 LAW 20

LAW DAY

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You can contact us by e-mail at brieflyspeaking@oba. org or opt for “snail mail” at:

TAKING PART IS EASY: YOU MAKE ALL THE DIFFERENCE.

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

D

OES

Y O U R

Law Day • n. 1 largest public legal education and promotion program in Canada; students and public-at-large province-wide. 2 requires a couple of hours of your time. 3 a rewarding way to volunteer your time. If you are interested in participating in Law Day 2011, please contact Filippo Conte: fconte@oba.org

Visit www.lawdayontario.ca

OnLy WestLAW® CAnAdA KeyCite® nOtes-up stAtutes AND RuLes AND ReguLAtiOns Only KeyCite® goes beyond statutes to offer a complete legislative Citator service. KeyCite gives you Rules and Regulations plus International Treaties and Canadian as well as Foreign Legislation. Narrow your results by key terms using KeyCite Locate. Use KeyCite Alert to track and receive e-mail notification of new developments in selected legislation.

Get Better Results Faster with Westlaw® Canada www.westlawcanada.com or call 1-866-609-5811

C I T A T O R J U S T Y O U

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Local. Affordable. Festive. Let The Conference Centre at the OBA host your holiday celebration. Whether you’re gathering with colleagues and co-workers, or family and friends, we can accommodate your every need. Steps from: 5 Star Hotels, World-Class Shopping, Broadway North

Book Now and Save!

Special Holiday Menus Available www.oba.org/conferencecentre

The Conference Centre at the OBA 200-20 Toronto Street, Toronto, M5C 2B8 Contact Annette Wing / awing@oba.org/ 416.869.1047 ext.321

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December 2010 | Briefly Speaking • En Bref


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December 2010  

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