April 2010 by Ontario Bar Association

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

April 2010 | Vol. 35 No. 2

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Institute 2010 Behind the Bench Law Day is Everyday And More...

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

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

Just a sample of some of the upcoming Section programs Lawful Access: Perspectives on Privacy, Police and Provider – Privacy Law Marketing Law: From Advertising 101 to 3.0 – Entertainment, Media & Communications What a Waste: Ontario’s Garbage, Stewardship Ontario and the Three R’s – Environmental Law

www.oba.org/pd

for a complete listing of programs

OBA Professional Development | CLE Programs - OBA Advantage Features • • • •

Practice specific Timely Cost effective Great speakers

• • •

Current topics Excellent materials Green Discount -

details online

Here are some of the upcoming CLE programs in May Simplifying Simplified Procedure Criminal Law: Your Client from Start to Finish (YLD) 8th Annual Pension and Benefits Hot Spots: Essential Updates on Key Legal Issues Commercial Leasing: The “Must Know” Update The Lawyer as Estate Trustee and/or Attorney for Property/Personal Care: Things You Need to Know Current Issues in Workplace Safety and Insurance Law

www.oba.org/pd for a complete listing of programs

BRIEFLYspeaking OBA Officers/ Comité directeur de l’ABO Carole J. Brown President/Président Lee Akazaki Vice President/Vice-président Douglas R. Downey Secretary/Secrétaire Jonathan C. Yen Treasurer/Trésorier Roderic Ferguson, Q.C. Chair, Professional Development/ Président du développement professionnel Jamie K. Trimble Immediate Past President/Président 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

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Behind The Bench

Matter of Compensation in R. v. Baltovich

Institute 2010

Law Day Is Everyday

The Honourable Justice Heather McGee Superior Court of Justice

FEATURES

Chantal Brochu Buset & Partners LLP

Who’s Who on the 2010 Briefly Speaking Editorial Board | 2

The Honourable Doug Lewis Lewis Downey Tornosky Lassaline & Timpano Jeffrey S. Percival Ogilvy Renault LLP

Maria Sagan Student Editor / Rédactrice étudiante

Update on Paralegal Regulations | Steven Rosenhek | 19

J. Andrew Sprague Miller Thomson LLP

Auto Insurance Changes Coming this Summer | Richard C. Halpern | 20

Questions or Comments? / Questions ou commentaires? Editorial Team, Briefly Speaking/ Rédaction, En bref

Julia Hanigsberg Ryerson University Chair, Public Affairs Committee Président, Comité des affaires publiques

The Wisdom of Solomon: The Sequel | Marcel Strigberger | 26

Louise Harris Director of Public Affairs/ Directrice des affaires publiques 416-869-1047 ext/poste 355 lharris@oba.org

Institute 2010 | 30

Cheryl Crocker Public Affairs Officer/ Responsable des affaires publiques 416-869-1047 ext/poste 309 ccrocker@oba.org Rob Gilmour Advertising Sales Vente d’annonces 416-869-1047 ext/poste 406 Filippo Conte Bilingual Public Affairs Officer/ Responsable bilingue des affaires publiques 416-869-1047 ext/poste 346 Alex Pacheco Graphic Design/Graphisme 416-869-1047 ext/poste 363

Molière, Mauritius and Enjoying the Stars | Filippo Conte | 29

Law Day is Everyday | 34 CBA Mid-Winter Meeting | 36

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 | April 2010

BRIEFLY SPEAKING

Who’s Who on the 2010 Briefly Speaking Editorial Board

ntroducing the 2010 Briefly Speaking Editorial Board. Under their guidance we can expect an exceptional publishing schedule of timely and pertinent articles that speak to the interest of our members. April’s Spring Round Up issue is a collection of our popular columns; including another installment of Behind The Bench; introducing you to Ontario’s Judiciary, as well as featured articles such as The Matter of Compensation in R. v. Baltovich, an exchange between Baltovich Counsel James Lockyer and Attorney General Chris Bentley. JAMES MORTON, CHAIR is a lawyer with Steinberg Morton Hope & Israel LLP where he practises litigation. He teaches evidence at Osgoode Hall Law School, has authored or co-authored over 20 books and is a frequent media commentator. He blogs at www. jmortonmusings.blogspot.com NANCY E. COOPER is a sole practitioner with a criminal law practice in Northeastern Ontario, including the James Bay Coast. Her special interests include First Nations issues in criminal law and the use of technology in the office and courtroom.

THE HONOURABLE DOUG LEWIS is a solicitor who practises elder law and business law in a six-person firm, located in Orillia, Ontario.

THE HONOURABLE JUSTICE HEATHER MCGEE, of the Superior Court of Justice (Newmarket) is a former president of the Ontario Bar Association.

JEFFREY S. PERCIVAL is a bilingual commercial litigator at Ogilvy Renault LLP in Toronto. He is a member of the OBA’s Civil Litigation Section executive, OBA Council and the Official Languages Committee.

J. ANDREW SPRAGUE is a business and information technology lawyer based in the Toronto office of Miller Thomson LLP.

MARIA SAGAN is a third-year student at Osgoode Hall Law School and will be articling at McMillan LLP.

ALASTAIR CLARKE practises immigration and poverty law at York Community Services – Legal, serving low income residents of west Toronto. When Alastair is not serving clients, he is likely taking care of his precocious son Julian who, at 16 months, can’t wait to get on the hockey rink. 2

CHANTAL BROCHU was called to the Bar in February, 2001 and is currently establishing a law practice in civil litigation, with a focus on insurance defence, with Buset & Partners LLP, in Thunder Bay. Chantal is bilingual and is dedicated in offering legal services in both the French and English communities of Northwestern Ontario.

If you have an idea for an article, we’d like to hear from you. Please contact ccrocker@oba.org.

April 2010 | Briefly Speaking • En Bref

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SUPERIOR COURT OF JUSTICE The Honourable Mr. Justice Ronald P. Kaufman, a lawyer with the law firm Walkerhead in Pickering, Ontario, is appointed a Judge of the Superior Court of Justice, Family Court Branch, to replace Mr. Justice Thomas Wood, whose vacancy in the Family Court Branch in Bracebridge was transferred to Newmarket.

Mr. Justice Kaufman received a Bachelor of Arts from York University in 1973 and a Bachelor of Law from the University of Windsor in 1977. He was called to the Ontario Bar in 1979. Prior to his appointment, he practised with Walkerhead (2006 to present), with Murray Stroud Law Office (1981-2005), with Reiter/Schipper (1980 -1981) and with Magerman and Page (1979-1980). Mr. Justice Kaufman was a member of the Canadian and Ontario Bar Associations, Durham Region Law Association, the Advocates’ Society, as well as the Durham Child Protection Alternate Dispute Resolution Panel. He served as director of the Collaborative Family Law Association of Durham (2004 to present) and was a panel member of the Office of the Children’s Lawyer from 1997 to 2005.

The Honourable Mr. Justice A. Duncan Grace, a lawyer with the Miller Thomson LLP in London, Ontario, is appointed a Judge of the Superior Court of Justice in Toronto to replace Mr. Justice W.B. Trafford, who elected to become a supernumerary judge as of January 27, 2010. Mr. Justice Grace received a Bachelor of Law from the University of Western Ontario in 1980 and completed a Master of Law at the University of Melbourne in 1990. He was called to the Ontario Bar in 1982. Mr. Justice Grace practised with Miller Thompson from 2006 to the present, with Briefly Speaking • En Bref | April 2010

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McCarthy Tétrault from 1991 to 2006 and with Harrison Elwood from 1980 to 1991. Mr. Justice Grace is past-adjunct associate professor at the University of Western Ontario and past senior instructor at the Law Society of Upper Canada, Bar Admission course (1991-2002). He also authored numerous articles on insolvency matters. Mr. Justice Grace is a past member of the Thames Valley Children’s Centre and Community Living London. Professor Lorne Sossin has been appointed as Dean of York University’s Osgoode Hall Law School, effective July 1, 2010.

Prior to joining the University of Toronto, where he served as associate dean in the Faculty of Law from 2004 to 2007, Sossin was a faculty member at Osgoode Hall Law School and an associate-in-law at Columbia Law School. He is also a former litigation lawyer with Borden & Elliot (now Borden Ladner Gervais) and a former law clerk to the Chief Justice of the Supreme Court of Canada.

Sossin holds doctorates in law from Columbia University and in political science from the University of Toronto. His teaching interests span administrative law, public administration, professional regulation, civil litigation, ethics and professionalism and legal process. He received a 2008-2009 Ontario Confederation of University Faculty Associations Award for Teaching Excellence. Sossin will succeed former Osgoode Dean Patrick Monahan, who has taken on a new role as York’s vice-president academic & provost.

PRESIDENT’S MESSAGE

Let Professionalism and Civility Thrive President Carole J. Brown

Professionalism is the cornerstone of the practice of law and is critically important in our day-to-day practices. At its core are our shared values of civility, integrity and respect for our colleagues and the Court, together with excellence, leadership and service in the public interest.

Significant concern has been expressed in recent years about the decline in professionalism and civility. Indeed, the issues of civility raised in the Code Lesage Report are playing themselves out in courtrooms and boardrooms across the country. When I began in the practice of law 25 years ago, collegiality was the norm. The phrase “my friend”, said in open court, was expressed genuinely, and advocates while “fearlessly defending their client”, discharged their duties with integrity and respect as officers of the court. Today, less civil behaviour is often the norm.

Many reasons for this are posited. A lack of mentoring is one. Today, there are few opportunities to junior to experienced senior counsel, to learn from shadowing them in court and to be mentored in the first critical years of practice. Prevalent today is the belief that an adversarial role and fearless defence of one’s client entails aggression toward the opposing side. The lawyer’s duty to resolutely defend their client’s interests, while displaying civility and integrity, is often supplanted by a personal identification with their client’s case and a concerted drive to win at all costs, casting civility aside and adopting aggressive courtroom tactics. Incivility practised in the courtroom or boardroom can seriously erode the public’s respect for lawyers and confidence in the legal system generally. Moreover, it can cause a lawyer’s personal reputation, a valuable asset built up over many years, to be quickly tarnished or lost. 4

Many initiatives have been undertaken by bench, bar and academe to foster and encourage professionalism and civility

in the courts and in the profession-at-large. The recently reconstituted Chief Justice of Ontario’s Advisory Committee on Professionalism, on which I have the honour of sitting as OBA representative, will undertake new initiatives to promote professionalism and civility. The OBA has also been at the forefront of initiatives that afford us opportunities to reinforce our shared values and to participate in furthering professionalism, civility and the interests of justice.

To provide mentoring opportunities, the OBA’s new pilot mentorship project in Ottawa and Kingston permits young counsel to be paired with a senior lawyer as mentor. This successful initiative will be implemented province-wide within the next year. To foster excellence in one’s area of practice which, in turn, garners the public’s trust and respect, the OBA offers substantive professional development programs which incorporate, in their content, civility and professionalism. The OBA also does significant advocacy work in the public interest, in fulfillment of our professional duties.

The CBA Rules of Professional Conduct provide guiding principles for civility. Civility has, as an underpinning, collegiality among members of the bar who socialize and work together outside their individual practices and firms. By participating in OBA Sections, committees or working groups, you may be engaged with opposing counsel in a contentious issue in court one day, and working together on an OBA committee on professional issues the next. Engagement in the OBA helps to reinforce, in a concrete way, our shared values of professionalism and civility, and provides personal and professional experiences that inform our daily practices. It is important for each of us, and for the profession-at-large, to become actively engaged and involved in association activities beyond our law practices to ensure that professionalism and civility thrive in our individual practices and in our law firms. This will, in turn, engender greater respect for our profession and our legal system in the eyes of the public.

The final word on professionalism and civility go to the Bard, who wrote in The Taming of the Shrew, “And do as adversaries do in law, Strive mightily, but eat and drink as friends”. April 2010 | Briefly Speaking • En Bref

MESSAGE DE LA PRÉSIDENTE

Favorisons l’épanouissement du professionnalisme et de la civilité Carole J. Brown, Présidente

Le professionnalisme constitue la pierre angulaire de l’exercice du droit, et il est essentiel à nos pratiques quotidiennes. En son cœur résident nos valeurs communes de civilité, d’intégrité et de respect envers nos collègues et la Cour, ainsi que l’excellence, le leadership et le service au nom de l’intérêt public.

Des inquiétudes significatives ont été exprimées au cours des dernières années concernant le déclin du professionnalisme et de la civilité. En effet, les questions de civilité soulevées dans le rapport Code-LeSage sont présentes dans les tribunaux et les salles de conférence de l’ensemble du pays. Lorsque j’ai commencé à exercer le droit il y a 25 ans, la collégialité constituait la norme. L’expression « mon ami(e) » utilisée en audience publique était prononcée de manière sincère, et les avocats, tout en « défendant courageusement leur client », exerçaient leurs fonctions avec intégrité et respect en leur qualité d’officiers de justice. De nos jours, un comportement moins civil est monnaie courante.

De nombreuses raisons sont avancées pour expliquer cette réalité. Notamment, un mentorat insuffisant. Il existe aujourd’hui bien peu d’occasions pour les avocats adjoints d’apprendre des avocats principaux chevronnés au sein des tribunaux, tout en bénéficiant de leur mentorat pour leurs premières années, cruciales, d’exercice du droit. La croyance aujourd’hui répandue veut que le rôle de contestation et la défense intrépide du client impliquent une certaine agressivité envers le camp adverse. Le devoir qui incombe à l’avocat de défendre résolument les intérêts de son client, tout en faisant preuve de civilité et d’intégrité, cède bien souvent le pas à l’attachement personnel à la cause du client, et à une volonté concertée de gagner à tout prix, la civilité étant bafouée au profit de tactiques agressives en salle d’audience. L’incivilité au sein du tribunal et des salles de conférence risque de porter gravement atteinte au respect du public envers les avocats, ainsi qu’à sa confiance dans le système judiciaire en général. Qui plus est, elle peut entacher ou même détruire la réputation personnelle de l’avocat, un atout précieux dont l’établissement nécessite plusieurs années.

De nombreuses initiatives ont été prises par la magistrature, le barreau et le milieu universitaire pour favoriser et encourager le professionnalisme et la civilité dans les tribunaux et au sein de la profession dans son ensemble. Le Comité consultatif sur le professionnalisme du juge en chef Briefly Speaking • En Bref | April 2010

de l’Ontario, récemment reconstitué, dont j’ai l’honneur de faire partie à titre de représentant de l’ABO, entreprendra de nouvelles initiatives pour promouvoir le professionnalisme et la civilité. L’ABO a également été au premier plan d’initiatives qui nous donnent l’occasion de consolider nos valeurs communes et de participer à l’amélioration du professionnalisme et de la civilité, ainsi qu’à la défense des intérêts de la justice. Pour fournir des possibilités de mentorat, le nouveau projet-pilote de mentorat de l’ABO à Ottawa et Kingston permet aux jeunes avocats d’être jumelés avec un avocat chevronné faisant office de mentor. Cette initiative couronnée de succès sera étendue à la province entière l’an prochain. Pour favoriser l’excellence dans votre domaine d’exercice afin de susciter la confiance et le respect du public, l’ABO propose des programmes constructifs de développement professionnel dont le contenu intègre les notions de civilité et de professionnalisme. L’ABO mène également des efforts significatifs de défense des droits dans l’intérêt du public, dans le cadre de nos devoirs professionnels.

Le Code de déontologie professionnelle de l’ABC fournit des principes directeurs en matière de civilité. La civilité a comme pilier la collégialité entre membres du barreau, qui nouent des contacts et collaborent hors de leur cabinet. En vous joignant à des sections, des comités ou des groupes de travail de l’ABO, vous pourriez vous opposer à un avocat dans le cadre d’une question litigieuse une journée donnée, et collaborer avec ce même avocat au sein d’un comité de l’ABO chargé de questions professionnelles le lendemain. L’engagement au sein de l’ABO contribue à consolider, de manière concrète, nos valeurs communes de professionnalisme et de civilité, et de fournir des expériences personnelles et professionnelles qui guident notre exercice du droit au quotidien. Il est crucial pour chacun d’entre nous, et pour la profession dans son ensemble, que nous nous engagions et impliquions activement dans les activités de l’association au-delà de notre exercice du droit, afin de nous assurer que l’épanouissement du professionnalisme et de la civilité soit favorisé au sein de nos cabinets. Ainsi, le respect du public envers notre profession et notre système judiciaire n’en sera que plus grand. La remarque finale sur le professionnalisme et la civilité revient à Shakespeare, qui a écrit, dans La Mégère apprivoisée, « [...] et [agissons] comme les avocats qui combattent avec chaleur au barreau, et puis mangent et boivent en bons amis ».

SUPREME COURT OF CANADA UPDATE

Summaries Eugene Meehan, Q.C.

ere’s a summary of all appeals and all leaves to appeal (ones granted – so you know what areas of law the S.C.C. will soon be dealing with). For leaves I’ve specifically added in both the date the S.C.C. granted leave and the date of the C.A. judgment below, in case you want to track and check out the C.A. judgment. This summary covers December 23, 2009 to February 15, 2010. If you’d like previous reports so you’re rightup-to-date, let me know, and I’ll email them to you: emeehan@langmichener.ca.

APPEAL JUDGMENTS

CHARTER: s. 7; JURISDICTION OF COURTS IN FOREIGN RELATIONS Canada (Prime Minister) v. Khadr (Fed.C.A., August 14, 2009) (33289) Jan. 29, 2010

Khadr is a Canadian detained by the U.S. military at Guantanamo Bay, charged with war crimes, with a U.S. trial pending. The Charter was breached, but consistent with the separation of powers doctrine, the government has the discretion on how to respond. CONTRACTS: TENDERS; EXCLUSION CLAUSES

Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) (B.C.C.A., December 3, 2007) (32460) Feb. 12, 2010

An exclusion clause does not exclude liability where a noncompliant bid is accepted. ENVIRONMENTAL LAW: LEVEL OF ENVIRONMENTAL ASSESSMENT

MiningWatch Canada v. Canada (Fisheries and Oceans) (Fed. C.A., June 13, 2008) (32797) Jan. 21, 2010

In the context of a copper and gold mining and milling operation in B.C., and after the B.C. Environmental Assessment Office issued a certificate, the federal Department of Fisheries and Oceans initially stated that a comprehensive study was required, but subsequently scoped the project so as to exclude the mine and mill, concluding that a compre6

hensive study was no longer necessary, and only screening was. An environmental group (MiningWatch) filed for judicial review. The S.C.C. ultimately allowed that application for judicial review: • t he Act and Regulations require that the environmental assessment track be determined according to the project as proposed • it is generally not open to a federal authority to change that level.

LEAVES TO APPEAL GRANTED

LIFE INSURANCE IN QUEBEC: TIMING OF DEATH What is the legal status where documents have been sent to the insurer, but the applicant dies accidentally before the policy takes effect, 51 days after signing the application and authorizing a bank transfer?

Suzanne Laniel v. Jocelyn Tessier (Que. C.A., August 17, 2009) (33382) Jan. 21, 2010 PHARMACEUTICALS

There is a publication ban in this case where the issues include: access to scientific information provided by a manufacturer of a new drug; who bears the burden of proving that access applies; whether Health Canada may disclose third party information without notice. Merck Frosst Canada Ltd. v. Minister of Health (Fed. C.A., May 26, 2009) (33320) Jan. 21, 2010 PHARMACEUTICALS

Same summary as above.

Merck Frosst Canada Ltd. v. Minister of Health (Fed. C.A., May 26, 2009) (33290) Jan. 21, 2010 April 2010 | Briefly Speaking • En Bref

SUPREME COURT OF CANADA UPDATE TAX: GAAR How should the GAAR rule be used in the context of paid-up capital of redeemed shares paid to a non-resident corporation? Jan. 28, 2010

Copthorne Holdings Ltd. v. Her Majesty the Queen (Fed. C.A., May 21, 2009) (33283) Jan. 28, 2010 TORTS IN QUEBEC: LIMITATION PERIODS FOR SEXUAL ASSAULT There is a publication ban in this case where the issues include the starting point for limitation periods where the victim informed parents but the parents chose not to bring proceedings at that time. S.C. v. Roman Catholic Archbishop of Québec (Que. C.A., July 8, 2009) (33360) Jan. 21, 2010 Eugene Meehan, Q.C. is the chair of the Supreme Court Practice Group with Lang Michener LLP.

26 Briefly Speaking (Multi-tool)

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Briefly Speaking • En Bref | April 2010

SPOTLIGHT ON SECTIONS

Health Law Marc H. Spector

HY DO WE DO THIS? The Health Law Section of the OBA was created 25 years ago in response

to the AIDS epidemic. The traditional areas of personal injury, administrative law and medical malpractice did not fully address the unique issues that can arise where the law, health care and ethics intersect. The aim of the Health Law Section is to bridge that gap. WHO ARE WE? Tackling health care issues is an awesome undertaking. It requires a diversity of members, including those who work in private practice or through government agencies or regulatory bodies. It also requires novel ideas, a sense of advocacy and community involvement, and a desire to learn and do more.

Today, we have well over 300 active members. Our executive consists of, among others, a registrar of a regulated health college, a lawyer who works for the College of Physicians and Surgeons of Ontario, an in-house lawyer for the Ministry of Health and Long-Term Care, a lawyer for Centre for Addiction and Mental Health along with those who work in private practice for a number of health care organizations and providers. WHAT DO WE DO?

HOW CAN YOU BECOME INVOLVED? We are devoted to what we do.

For a glimpse, take a look at Health Matters, our newsletter. It is chock-full of newsy and insightful commentary and legal updates (Look out for pictures from our 25th anniversary dinner. Start writing for us today!). You can also come to the OBA and take in a Section program. Alternatively, join a working group or run for a spot on next year’s Executive or simply drop in to observe one of our meetings. It will be good for you. We look forward to seeing you at our year-end dinner on June 24th. Save the date!

Marc H. Spector practises at Shekter, Dychtenberg LLP which, acts as general counsel and prosecutor for a number of professional health colleges. He is a member of the Health Law Section Executive.

We provide advocacy, commentary and education on matters ranging from privacy issues to Tele-Health, negotiation of technology procurements and multi-party public/private partnerships, identification, protection and licensing of intellectual property rights, obtaining, transferring or relocating independent health facilities, laboratories and other regulated commercial transactions, government relations and negotiations, financing and the structuring of private health care facilities and/or retirement homes or institutions, together with opinions and advice on Ontario health policy.

It’s a mouthful and a tall order. We do it by publishing articles and holding seminars covering a wide range of topics. They range from the impact of H1N1 and SARS to the reporting requirements of hospitals, privacy of health information, controls over reproduction and genetic-testing, end of life decision-making, complaints and discipline of health care professionals, mental health/consent and capacity, corporate health, duties and standards of care and health policy. 8

April 2010 | Briefly Speaking • En Bref

ADVOCACY IN ACTION

Business Corporations Act, Legal Aid & Haitian Relief OBA CALLS FOR BUSINESS CORPORATIONS ACT AMENDMENTS TO BENEFIT LEGAL PROFESSION At Pre-Budget Hearings, OBA President Carole J. Brown called on the province to amend the Business Corporations Act to allow for non-voting family shares in legal professional corporations, giving lawyers equity with the dental and medical professions. Excerpt from Carole Brown’s presentation:

“On behalf of our members, and as we have done in the past, we would, once again, urge you to consider an amendment to the Business Corporations Act. Under the Act, lawyers cannot currently issue non-voting shares to immediate family members; doctors and dentists can. While this is clearly an issue of fairness and equity, it is also, most decidedly, an issue of access to justice. In smaller centres, towns and rural communities throughout this province, sole practitioners and small firms provide the legal services for the majority of Ontarians. The ability to access those same rights available to other professionals could mean the difference between maintaining a viable law practice to serve that local community or having to pack up and move one’s practice to a larger, potentially more viable centre. The Ontario Bar Association submits that it is unfair, inequitable and inappropriate to afford doctors and dentists this benefit under the Act, but not lawyers.

Lawyers whose practices consist primarily of legal aid certificates, whether family, civil or criminal, which is indeed the case in many areas of this province, already struggle financially. They serve, in many cases, the most vulnerable in our society. The recent increase to legal aid, which I will address more fully in a moment, will be helpful, but it is by no means a panacea. Why should certificate lawyers not be allowed to find the same measure of financial security as other professionals when they are at the front lines of the justice system?”

OBA SUCCESSFUL IN ADVOCACY FOR IMPROVED LEGAL AID FUNDING On Sunday, January 24th, Attorney General Chris Bentley announced how the $150 million, committed to in September 2009, would be used to improve the delivery of legal aid services. This included a comprehensive increase to the tariff rate for lawyers representing family, criminal, immigration and refugee and mental health clients. In her response to the announcement, OBA President Carole J. Brown stated:

that this funding was to benefit the service providers, that no one area of practice would be funded to the exclusion of others and that he wanted the advice of the Ontario Bar on how the new funding allocation should be utilized. The announcement today is the result of a lengthy dialogue with the profession through Ontario’s legal organizations that comprise ASLA, and will, we believe, ensure access to justice for vulnerable Ontarians.” CBA IMMIGRATION LAWYERS LEAD PRO BONO INITIATIVE FOR HAITI EARTHQUAKE RELIEF

Lawyers in the CBA Citizenship & Immigration Law Section are spearheading an initiative to provide initial legal consultations and to prepare immigration applications without charge for Canadians and permanent residents in Canada who wish to sponsor family members living in areas affected by the earthquake disaster in Haiti. To learn more about this initiative, please visit http://www.cba.org/CBA/about/haiti/default.aspx

RECENT OBA SUBMISSIONS: •

OBA Submission on the Proposed FSO Policy on Management and Retention of Pension Records by the Administrator

•

OBA Submission proposed amendments to the Business Corporations Act (Ontario)

•

Adjudicating Human Rights: Transparency and the Protection of Privacy in an Administrative Law Context

•

Law Society of Upper Canada: Best Practices at Family Justice System Entry Points

•

Pre-Budget Submission to the Standing Committee on Finance and Economic Affairs

•

Law Commission of Ontario: Consultation on Continuing Professional Development (CPD) Requirement To view any of the above submissions, please go to www.oba.org/submissions

“From his initial announcement, Minister Bentley has been very specific in both private meetings and public statements, Briefly Speaking • En Bref | April 2010

LSUC UPDATE

Law Society Modifies Conflict Rules in Support of PBLO’s ‘Brief Services’ Programs Denise McCourtie

t will soon be easier for volunteer lawyers to help clients through Pro Bono Law Ontario’s (PBLO’s) brief services programs. The Law Society of Upper Canada recently agreed to modify the standard for conflicts of interest for lawyers participating in PBLO’s court-based programs, such as the Small Claims Duty Counsel Project and the Law Help Centre at the Superior Court of Ontario. The modified conflicts standard means that a lawyer may provide ‘brief services’ under the PBLO program unless the lawyer actually knows of a conflict of interest that would prevent the lawyer from acting. This avoids the need for a conflicts search in many cases. The Rules of Professional Conduct will be amended to reflect the new policy, which was approved at January 2010 Convocation. The Law Society made the change in response to challenges faced by PBLO. Many of PBLO’s volunteer lawyers are younger lawyers from large law firms that represent large institutional and corporate clients. To comply with the Rules of Professional Conduct on conflicts of interest, the lawyers were required to perform a conflicts search of their firms’ client database to determine if any disqualifying conflicts existed.

The amount of time it took to search and clear conflicts created problems. Delays ranging from 20 minutes up to three hours were frustrating for clients and they significantly impacted the overall service that could be provided. According to PBLO, the Law Help Centre had 5,676 visitors in 2009 and the Small Claims Project had 1,969, almost all of whom had to wait for a conflicts check. The large number of delays led to people being turned away because there was not enough time to complete the conflicts searches.

justice in Ontario, which is one of the reasons we have been able to succeed.”

The Law Society is a sponsor of Pro Bono Law Ontario. Law Society by-laws were amended in June 2008 to permit lawyers in the 25 per cent and 50 per cent (non-practising) fee categories who wish to provide pro bono legal services through PBLO to apply to the Law Society for an exemption from the requirement to have their fees raised to the 100 per cent (practising) fee category. This mirrors the LAWPRO insurance levy exemption for non-practising lawyers who provide LAWPRO-approved PBLO pro bono legal services.

Retired lawyers who are over 65 years of age who only practise law on a pro bono basis through PBLO or at a clinic funded by Legal Aid Ontario that is approved by PBLO can also apply for an exemption from payment of the annual fee. Denise McCourtie is a Communications Advisor with the Law Society of Upper Canada.

In addition, some law firms were forced to drop out of the program altogether because they were being overwhelmed by the number of conflict searches required.

“It is frustrating for us to turn away people who need help because of the conflict standard – especially when they’ve traveled from as far away as Thunder Bay to access our court-based pro bono projects”, says Lynn Burns, PBLO’s Executive Director. “We are grateful that the Law Society has taken a proactive approach to address this issue. The Law Society -- along with the participating law firms and lawyers -has a strong commitment to access to 10

Law Help Centre

April 2010 | Briefly Speaking • En Bref

MISE À JOUR DE LSUC

Le Barreau modifie ses règles sur les conflits au profit des programmes de services brefs de PBLO Denise McCourtie

es avocates et avocats bénévoles pourront bientôt aider plus facilement leurs clients grâce aux programmes de services brefs de Pro Bono Law Ontario (PBLO). Le Barreau du Haut-Canada a récemment accepté de modifier sa norme sur les conflits d’intérêts pour les avocates et avocats qui participent aux programmes judiciaires du PBLO, comme le projet d’avocats de service de la Cour des petites créances et le centre d’aide juridique à la Cour supérieure de l’Ontario. Grâce à la modification de la norme sur les conflits, un avocat peut offrir des « services brefs » par le biais d’un programme du PBLO, à moins qu’il ne soit au courant d’un conflit d’intérêts qui l’empêcherait de représenter un client, et cela dans le but d’éviter les recherches de conflits dans de nombreux cas. Le Code de déontologie sera modifié en fonction de la nouvelle politique, approuvée en janvier 2010 par le Conseil.

Le Barreau a fait le changement pour aider le PBLO à surmonter certaines difficultés. De nombreux avocats bénévoles pour l’organisme sont jeunes et travaillent dans de grands cabinets qui représentent de grandes institutions et des entreprises. Pour se conformer au Code de déontologie à l’égard des conflits d’intérêts, les avocats doivent faire une recherche de conflits dans la base de données sur les clients de leur cabinet pour voir s’il existe un conflit pouvant entraîner une exclusion. Le temps requis pour faire la recherche et obtenir les autorisations posait problème. Les retards, qui pouvaient durer de 20 minutes à trois heures, frustraient les clients et perturbaient beaucoup le service. Selon PBLO, le centre d’aide juridique a reçu 5 676 visiteurs en 2009 et le projet de la Cour des petites créances en a reçu 1 969, dont la grande majorité a dû attendre que la vérification de conflit soit faite. À cause du grand nombre de retards, on a dû refuser de nombreuses personnes, car le temps manquait pour terminer les recherches.

De plus, certains cabinets ont été forcés de se retirer du programme parce qu’ils croulaient sous le nombre de recherches requis. « Il est frustrant de devoir refouler toute personne ayant besoin d’aide à cause de la norme sur les conflits, surtout lorsqu’elles viennent d’aussi loin que Thunder Bay afin d’avoir accès à nos projets judiciaires pro bono, a déclaré Lynn Burns, la directrice générale de PBLO. Nous remercions le Barreau d’avoir adopté une approche proactive pour aborder ce problème. Le Barreau ainsi que les cabinets, les avocats et les avocates qui participent au programme sont fortement engagés envers l’accès à la justice en Ontario. C’est une des raisons pour laquelle nous avons pu réussir. » Le Barreau est un commanditaire de Pro Bono Law Ontario. Les règlements administratifs du Barreau ont été modifiés en juin 2008 pour permettre aux avocats qui sont dans la catéBriefly Speaking • En Bref | April 2010

gorie de cotisation à 25 et 50 pour cent, et qui veulent rendre des services pro bono par le biais de PBLO, de faire une demande d’exemption pour ne pas que leur cotisation grimpe à 100 pour cent, comme pour les avocats en exercice. Cette modification tient compte de l’exemption de prime d’assurance pour les avocats qui n’exercent pas et qui fournissent des services pro bono approuvés par LAWPRO sous la bannière de PBLO.

Les avocats à la retraite qui ont atteint l’âge de 65 ans et qui n’offrent que des services pro bono sous la bannière de PBLO ou à une clinique financée par Aide juridique Ontario et approuvée par PBLO peuvent aussi faire une demande d’exemption de paiement de la cotisation annuelle. Denise McCourtie est conseillère en communications à le Barreau du HautCanada

WANTED Yo

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is offe reer C r tary se ed as a com entre p of the rvice to mem limenO b ers Associa ntario Bar tion Find u s homep on the OBA a ge – Caree r Cent click ‘Legal re’ E-mail

submit ccrocker@ob a caree a r oppo .org to rtunity today.

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.

This Spring… The Honourable Chris Bentley

he justice system must be inclusive, accessible, and it needs to work for the people it serves. We have made a number of changes and investments in our justice system in Ontario not only to increase access to justice, but also to increase the efficiency with which we use justice resources in an effort to make the system better, faster, stronger. Our government is taking the same approach to our economy. The fact is, in order to continue to support and invest in vital public services like the justice system and courts, schools and hospitals, we need a strong economy, with more people working and with good, high-paying jobs. That’s what our tax changes, including the HST, are all about. That’s why they have support of not just the business community, but groups that support many of the most vulnerable in our communities. We’re lowering our corporate income tax rate and the tax rate on small businesses, and we’re replacing two, separate sales taxes — the PST and GST — with a single harmonized sales tax, the HST.

The current tax system penalizes most businesses by making them pay two separate taxes, and also by generally charging the tax on business investments. For anyone with business overhead it means higher costs. The HST will lower the cost of doing business by providing rebates, or savings, on business costs – from office furniture, to computers to pens and paper. In fact, like with the GST, businesses will receive input tax credits for sales tax they pay on many of their business purchases and capital investments, providing significant savings. The HST will eliminate cascadThe Honourable Chris Bentley, MPP, is the Attorney General of Ontario and Minister of Aboriginal Affairs

ing layers of PST–embedded tax hidden in the purchase price, making business inputs cheaper. Lastly, legal aid certificates will be exempted from the HST. As with the GST, the same reimbursement system will apply.

JUSTICE ON TARGET

Justice on Target is the first ever collaborative, resultsbased approach to reducing delays in the criminal courts and ensuring justice participants can focus their resources on the serious and complex cases that need them the most. Justice on Target is making progress. We are in five Action sites across the province and for the first time in 18 years, we have stopped the upward trend in the number of appearances that have continually challenged the criminal justice system.

The leadership at the initial Action Sites have worked hard to stop the upward trend in delay and courthouses across the province will see continued improvements as more and more sites are engaged in the strategy, new initiatives are implemented and cases begin moving through the system. This past fall, Windsor, Sudbury, Kitchener, Etobicoke, College Park and Scarborough joined the five established Justice on Target Action Sites. Justice on Target will be every Ontario Court of Justice site by late spring.

FAMILY LAW REFORMS

On March 1, 2010, new provisions under the Family Statute Law Amendment Act, 2009, take effect to better protect and support children and families in times of family breakdown and distress. These changes will better protect children involved in custody and access cases by requiring more detailed information be made available to judges before decisions are made. On October 15, the new restraining order provisions came into force, providing greater protection for all, especially women and children, who might be at risk of violence.

Finally, in December I announced the four pillars of family process reform, which will lead to a faster, less confrontational and more affordable means of resolving family disputes. April 2010 | Briefly Speaking • En Bref

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

Ce printemps… L’honorable Chris Bentley

e système de justice doit être inclusif et accessible, et il doit répondre aux besoins des personnes qu’il sert. Nous avons apporté un certain nombre de changements et effectué des investissements dans le système de justice de l’Ontario, non seulement pour élargir l’accès à la justice, mais également pour optimiser l’utilisation des ressources de la justice en vue de rendre le système plus efficace, plus rapide et plus solide. Notre gouvernement suit la même approche à l’égard de l’économie. Le fait est que pour continuer à soutenir les services publics indispensables, comme le système de justice et les tribunaux, les écoles et les hôpitaux, nous avons besoin d’une économie musclée, de plus de gens qui travaillent et d’emplois bien payés.

C’est ce que nos réformes fiscales, y compris la TVH, cherchent à accomplir. Et c’est pourquoi nous avons l’appui non seulement du milieu des affaires, mais aussi de groupes qui desservent les personnes les plus vulnérables de notre société. Nous abaissons le taux de notre impôt sur le revenu des sociétés et le taux d’imposition des petites entreprises, et nous remplaçons deux taxes de vente distinctes - la TVP et la TPS - par une seule taxe de vente harmonisée, la TVH. Le système fiscal actuel pénalise la plupart des entreprises non seulement en leur faisant payer deux taxes distinctes, mais aussi en appliquant en général les taxes aux investissements des entreprises. Pour les entreprises, cette situation se traduit par des coûts plus élevés.

La TVH éliminera les coûts des affaires en prévoyant des remboursements, ou des économies, sur les frais généraux des entreprises, tels que l’ameublement de bureau, les ordinateurs, les stylos et le papier. En fait, comme pour la TPS, les sociétés pourront réclamer des crédits d’impôt pour la TVH perçue sur un grand nombre de leurs achats et investissements d’immobilisations, ce qui se traduira par d’importantes économies. La TVH éliminera les nombreuses couches de la TPS – taxe cachée dans le prix d’achat, ce qui réduira le prix des intrants des sociétés. Pour terminer, les certificats d’aide juridique seront exemptés de la TVH. Le même système de remboursement qu’avec la TPS s’appliquera.

JUSTICE JUSTE-À-TEMPS

L’initiative Justice juste-à-temps est la première approche collaborative, axée sur les résultats, jamais entreprise en vue de réduire les retards dans les tribunaux pénaux et d’encourager les participants au secteur de la justice à focaliser leurs ressources sur les cas complexes et graves qui en ont le plus besoin. Briefly Speaking • En Bref | April 2010

Justice juste-à-temps fait des progrès. L’initiative est mise en œuvre dans cinq sites d’action à travers la province et, pour la première fois depuis 18 ans, nous avons mis fin à la tendance constante à l’augmentation du nombre de comparutions qui retardait le système de justice pénale. Les personnes à la tête des premiers sites pilotes ont travaillé d’arrache-pied pour renverser cette tendance à accumuler les retards et les palais de justice de la province continueront à voir des progrès soutenus au fur et à mesure que d’autres palais de justice participent à la stratégie, que de nouvelles initiatives sont mises en place et que les dossiers commencent à franchir les étapes du système.

L’automne dernier, Windsor, Sudbury, Kitchener, Etobicoke, College Park et Scarborough se sont joints aux cinq sites d’action établis de la stratégie Justice juste-à-temps. La stratégie sera mise en œuvre dans tous les tribunaux de la Cour de justice de l’Ontario d’ici à la fin du printemps.

RÉFORMES DU DROIT DE LA FAMILLE

Le 1er mars 2010, de nouvelles dispositions aux termes de la Loi de 2009 modifiant des lois en ce qui concerne le droit de la famille prendront effet afin de mieux protéger et soutenir les enfants et les familles en cas de rupture de la famille et de bouleversements familiaux.

Ces changements permettront de mieux protéger les enfants visés par des cas de garde d’enfant et de droit de visite en exigeant que les juges aient accès à davantage de renseignements avant de prendre leurs décisions.

Le 15 octobre, les nouvelles dispositions sur l’ordonnance de ne pas faire sont entrées en vigueur, renforçant la protection pour tous ceux et celles qui risquent d’être victimes de violence, surtout les femmes et les enfants. Pour finir, en décembre, j’ai annoncé les quatre piliers de la réforme du droit de la famille, qui aboutiront à des moyens plus rapides, moins litigieux et plus abordables de résoudre les différends familiaux. L’honorable Chris Bentley est le procureur général de l’Ontario

BEHIND THE BENCH

BEHIND THE BENCH Introducing you to Ontario’s Judiciary Justice Harry LaForme Alastair Clarke As a young man living in Buffalo, Harry LaForme sought the obvious career path: joining his father at the local GM plant. As fate would have it, on the morning of his perfunctory physical examination, the substitute physician stubbornly refused to approve him for work due to a mild heart murmur (a murmur that had not prevented him from playing competitive basketball). Distraught young Harry walked away from the GM plant and reluctantly accepted that he would have to find alternative means to make a living. His search led him back to Canada and into the throws of an energized Aboriginal rights movement. Under guidance from his politically astute grandfather, he decided to contribute to the movement through the practice of law. When Justice LaForme joined the Aboriginal rights movement, he sought to find justice for members of marginalized communities. Although he has certainly contributed to Aboriginal issues, along the way, many other Canadian minority groups have benefited from Justice LaForme’s keen sensitivity for the interests of the disadvantaged: in a landmark ruling in 1999, he granted individuals with HIV/AIDS access to marijuana as medical treatment; in 2002, his contributions to the Ontario Divisional Court panel helped extend rights to same-sex couples in Ontario.

Justice Harry LaForme’s descriptors of his grandfather reflect a strong influence as a mentor and as a role model. After law school, Justice LaForme articled and practised corporate commercial law at Osler’s. He fondly remembers the training and the “lawyering skills” he acquired at Osler’s but, in his words, he was “intoxicated” by the big law firm environment. Due, in part, by the passing of his grandfather, Justice LaForme regained his focus as an advocate for the Aboriginal rights movement and forged out on his own, driven by the passion that led him to law school. When he needs focus, he drives to his ancestral home on the Mississaugas of New Credit First Nation near Hagersville. He often sees hawks along the road and is reminded of his grandfather, a man whose animal spirit guide is the hawk.

One of Justice LaForme’s first acts after moving into his office at the Ontario Court of Appeal was to request the removal of the bookshelves that lined the walls. Now, his walls are covered with the many pieces that make up his identity:

photos of his family and significant events, art, and poetry. A large glass case holds perhaps the most personal piece: a Talking Stick with the Justice’s animal spirit guide - the heron - carved on top. From my cursory research of Aboriginal customs, the heron aptly represents insight and the protection of dignity. Soon a new piece will be added to the Justice’s office: a 2010 Olympic torch. In December, he was a torchbearer in Six Nations of the Grand River, where he was able to run alongside one of the most important people in his life, his 9-year-old son. During my interview with Justice LaForme, I was struck by his recurrent references to his roots and his background as a source of strength and guidance. In his decisions and public speeches, for example, he frequently mentions his awareness of the “cultural imperative” that accompanies his statements. As the first Aboriginal person appointed to an appellate court, Justice LaForme feels that the world interprets his decisions and opinions not as strictly personal: they are seen as representative of the minority group to which he belongs. If he ever feels that he is losing focus from the ideals of his culture, he plans a trip west. “Home is where you get your bearings.” Alastair practises immigration law and poverty law at York Community Legal Services

Justice Richard LeDressay Louise Harris Justice Richard LeDressay shakes his head and simply cannot believe he’s been 14 years on the bench of the Ontario Court of Justice (first presiding in Guelph and now in Halton).

“My background is in criminal law and every day that I come to work I have the ability to put that experience and knowledge to work,” says LeDressay. “Being a lawyer was my first and only choice for a career,” he continues. “I articled at the Crown’s office in Hamilton, and after being called to the Bar in 1981 I spent seven years as an assistant Crown in Hamilton, Toronto and Halton as well as being a federal prosecutor in Halton and a deputy judge.”

He joined the Oakville firm of MacLeod Knox Watts (later O’Connor MacLeod) in 1988 as a criminal defence lawyer and was certified by the Law Society as a specialist in criminal litigation. April 2010 | Briefly Speaking • En Bref

BEHIND THE BENCH LeDressay says he feels “privileged that I hear this segment of people’s lives and make the best possible decision I can to apply the law in a reasoned judgement. He “loves the process and the rule of law” and finds every day “just flies by and is so varied and interesting”.

When not sitting, LeDressay and his wife Catherine now have the opportunity to indulge their love of travel and are game to try anywhere new. They rarely visit the same place twice, no matter how much they enjoyed it. They avoid the cities and seek out locations where they can enjoy the natural beauty of the region. Included in these adventures have been (after signing off all the legal waivers) swimming with the stingrays off Bora Bora, giant turtles in Hawaii and wild dolphins in Rangiroa. “It’s amazing to watch these creatures,” LeDressay says. “When you see them in their element they are unbelievably graceful. It’s like an underwater ballet”.

All three of LeDressay’s children, Justin (father of first grandchild, Caleb David Richard), Jennifer and Michael, chose to pursue careers in business, although there was a wistful sigh when he related that one “thought” about law before finally opting for business. Retirement is a long way off for LeDressay. He’s still enjoying all the experiences that the OCJ has to offer, including participating in Law Day activities for students. He believes that we’re all better off when the general public understands how the system works and grasps the concepts of the rule of law and the administration of justice. He has continued to maintain his OBA membership because he sees tremendous value in the balanced perspective brought forward by our multi-sectioned Association and that our advocacy efforts give voice to the concerns of the judiciary in Ontario.

Justice Patricia Hennessy Filippo Conte

Justice Patricia Hennessy of the Superior Court of Canada loves her job in Sudbury. This basically summarizes what was a great conversation with the avid rower, community supporter and advocate. I know her from her involvement in Law Day, but you may know her from the work she does with the International Association of Women Judges (IAWJ) or even through the Hennessy Cup.

Sudbury born and raised, Patricia Hennessy went to law school after finishing two years in undergrad. She worked in Toronto for five years doing commercial litigation, before returning to Sudbury. In Sudbury, jobs in-house at Laurentian University, working in employment law in a boutique firm and in-house for the Community Hospital, it was clear variBriefly Speaking • En Bref | April 2010

ety of work appealed to Justice Hennessy.

“When I first came to Sudbury, I thought it would be a career limiting move, but I was happily surprised to find it was not. The community is rich in its different sectors which provide interesting, challenging and diverse opportunities for lawyers. Judges’ experiences in Sudbury mirror those of lawyers who tend to have a general practice, often doing litigation and solicitor’s work. General jurisdiction judges in the true sense of the word.” When she was first appointed, having been in practice for over 20 years, Justice Hennessy had a revelation. “When you practise, you also have to do client development, pay the bills and other things, but when you get to the bench you just do - law. That is when I realized I love the law.”

The benefits of doing her job in Sudbury are two-pronged, since Sudbury affords Justice Hennessy the opportunity from May to September to row on the lake most mornings at 5:30 a.m. She has been rowing for more than 17 years and also takes part in annual dragon boat races, competitions and regattas. This May to October, her passion is leading to the World Masters Regatta, this year in Canada. When she is not rowing, she may be hiking, cross country skiing or working with students and teachers in preparation for the Hennessy Cup, Mock Trial Competition.

Justice Hennessy says her ten years working with education projects in Sudbury have been enriching and a truly collaborative work between the bar and the education sector. She admires the work educators do and says she is lucky to have the opportunity to work with such dedicated students and teachers. Although her work in Sudbury sometimes requires her to go beyond the city borders, she takes that even further by sitting in Nunavut, volunteering with the Wikwemikong First Nations school on Manitoulin Island and by doing international work with the IAWJ. Her work with the IAWJ saw her take on roles on their executive and as president, while also allowing her to meet judges from across Canada and around the world working on projects with judges from less developed countries. Variety is the spice of life for Justice Patricia Hennessy, who along with her colleagues and members of the profession in Sudbury, ensures access to justice for Ontarians. For more information on the International Association of Women Judges, please visit www.iawj.org.

www.ontariocourts.on.ca

In Memoriam: Morris A. Singer

he law yers and staff of Singer, Kwinter mourn the passing of our beloved cofounder, colleague and friend, Morris A. Singer.

Morris practised litigation for 38 years and during that entire time never lost his calm, gentle, courteous manner or the sweet smile that was his trademark. He provided outstanding representation to many whose voice would never be heard.

Morris was an active participant in continuing education with the Law Society of Upper Canada, an instructor in the Bar Admission Course and a clinical instructor at Osgoode Hall Law School. For many years he served as duty counsel at the Problem Central Legal Clinic. An active member of the CBA/OBA, The Advocates’ Society and the Ontario Trial Lawyers Association, Morris represented his clients in all levels of Court in Ontario and a variety of administrative tribunals. In addition to family law he practised in the areas of civil litigation, wrongful dismissal, workplace safety insurance and medical malpractice. The Ontario bar has lost an effective voice with his passing. We will honour Morris’ legacy as a great litigator, true gentleman and a wonderful man.

OBA Student Writing Award, 2009-2010 …as chosen by the Honourable Justice McGee of the Ontario Superior Court of Justice. The Ontario Bar Association Student Division Executive (SDE) is running an academic paper contest for all OBA Student Members on the issue of Access to Justice. It’s a great opportunity to write about a serious concern for anyone involved in the Canadian legal profession, as well as a fantastic way to get published early in your legal career!

TOpIC: Access to justice is a fundamental cornerstone to equity in the Canadian justice system. Access to justice may be limited by such things as: lack of resources, lack of funding, location of courts and legal support, geographical area or procedural hurdles. Discuss access to justice and what further steps can and should be taken by the legal profession to ensure justice is accessible to all Canadians. • • • •

Length: Maximum 20 pages, double-spaced. Eligibility: All OBA student members, whether you’re articling or in law school. Details: papers should be academic in nature following the McGill Guide citation style. papers submitted for a course at law school will be accepted. prize: A letter of congratulations from the OBA president, Carole Brown and Justice Heather McGee, Superior Court of Justice; a complimentary coupon for an OBA Continuing Legal Education program; $250 cash prize.

please Note: The paper is due April 20, 2010 at midnight and must be submitted for entry at lawstudents@oba.org. The winner will be publicly announced on Monday June 28th, 2010.

So get writing and tell us how to make justice more accessible in Canada today!

April 2010 | Briefly Speaking • En Bref

In Memoriam Keith Norton Louise Harris

n March 2007, Briefly Speaking profiled Keith Norton as one of its centennial “trailblazers”. That article, reprinted here

as a tribute to the late Mr. Norton, was written with his cooperation and outlined a life of accomplishment and public service. Keith Norton has been known for many significant accomplishments in his career. Most have very little to do with the practice of law, but rather how he has shaped the infrastructure in which practise their profession. Norton is both an educator and a lawyer by training, having studied law at Queen’s University and being the recipient of a diploma in education from the Ontario College of Education. He taught at the secondary and post-secondary levels and practised criminal and family law in Kingston before launching a successful political career. Starting in municipal politics in 1972 as an alderman, he became Kingston’s deputy mayor in 1974 and their Member of Provincial Parliament in 1975.

Appointed as Minister of Community and Social Services (CommSoc) in 1977, Norton used his time at the ministry to accomplish what many said couldn’t be done - the first major overhaul of children’s services in Ontario. Group homes were moved away from the Ministry of the Attorney General with the requisite battles over the funding that should follow them. Norton worked that out with his colleague, the Hon. Roy McMurtry, and then took on the Ministry of Health to bring Children’s Mental Health services under the CommSoc umbrella. Along the way, he managed to convince the Hon. George Thomson to leave the Provincial Court and work with him as Associate Deputy Minister of Community and Social Services for the province of Ontario, in charge of the Children’s Services Division. I sat down with Mr. Norton to discuss his many accomplishments. Displaying his characteristic modesty, he lauded the efforts of his colleagues. “George was known to be innovative,” said Norton of Thomson. “I needed his kind of thinking if we were to achieve real change benefiting Ontario’s vulnerable kids. It was an exciting time and the staff that we were able to attract in policy development went on in many cases to distinguished careers in public service.”

Moving to the Ministry of Environment, Norton started the “Blueprint for Waste Management,” the initial separation and recycling plan, which recognized the need to move away from landfills. Well ahead of his time, Norton was studying incinerators in Denmark and mobile kiln technology in the U.S. There followed postings as Minister of Health, Minister of Education and Minister of Colleges and Universities, before being “retired” by the voters in 1985. Norton ran in the 1990

Briefly Speaking • En Bref | April 2010

general election against then-Attorney General Ian Scott. When Norton revealed publicly that he was gay, the Toronto Sun newspaper headlined their story “Finally, an honest politician.” Said Norton, “my family, friends and those who were close to me had known for a long time. I came out to my family as a teenager. Those who needed to know, knew. It wasn’t a secret. In many ways in Ontario at that time we lived ‘don’t ask, don’t tell’ - and it wasn’t so very long ago.”

In 1992 Norton was appointed as president of the Canadian Human Rights Tribunal in Ottawa: “We had a landmark case dealing with External Affairs. There was a gay couple and one of the partners was posted to Jakharta. The government wouldn’t recognize the relationship, wouldn’t ensure they received appropriate couples living quarters, nor pay for the partner to accompany him. But they would pay to transport the cat.” A unanimous decision by the Tribunal opened the door by establishing that they were, in fact, a couple. Norton became Chair of the Ontario Human Rights Commission where he ran the show for a decade, finishing his term in 2005. “I feel that we moved the goal posts on a broad policy basis” he said. “We couldn’t have done what we did without the top notch staff, who are undeniably the best policy unit in the country. We did some unique things, some out of the box thinking for the time and I’m proud of my involvement on some very significant issues over the past decade,” Norton concluded. He modestly declined to list them, but I did my own research; to name but a few: age-related discrimination which emerged as the issue of mandatory retirement, autism funding, racial profiling and systemic discrimination, human rights and family status, barrier free education for students with disabilities, gender identity, public transit accessibility, duty to accommodate and hearing-impaired drivers. Keith Norton has spent a career with a law degree practising, in fact, as an “architect”. Whether by design, circumstance, or Ontario’s good fortune, this Kingston lawyer has spent a career building a society that lives and breathes equality. Just recently, Norton reinvented himself yet again and joined ADR Chambers. We in Ontario are the better for his life in public service. 17

Matter Of Compensation In R. v. Baltovich

rongly convicted of murder and later acquitted, Robert Baltovich was refused compensation by the provincial government. Here’s how Attorney General Chris Bentley

and Baltovich Counsel James Lockyer responded to a case that has sparked much debate …

Attorney General, Chris Bentley

James Lockyer, AIDWYC

After careful consideration of the factors relating to this matter, the Attorney General has concluded that the payment of financial compensation is not appropriate in this case. The Attorney General is convinced that, at every stage in this case, the Crown and police acted with integrity and in the best interests of the administration of justice.

On the day of Robert Baltovich’s acquittal, the Premier, commenting on the case, said in a radio interview:

A number of factors are taken into consideration to determine if a case is sufficiently rare and unusual to warrant financial compensation. These include the specific facts of this case, the Court of Appeal’s decision, and the Federal-ProvincialTerritorial Guidelines for Compensation for Wrongfully Convicted and Incarcerated Persons. Mr. Baltovich was convicted of second-degree murder at his first trial. On April 22, 2008, as a result of a number of developments in the case, including evidentiary issues and changes in the case law, the Crown determined there was no longer a reasonable prospect of conviction. The Crown was therefore dutybound to discontinue the prosecution, which it did by calling no evidence at the new trial. As a result, the jury returned a verdict of not guilty and an acquittal was entered. The Honourable Chris Bentley, MPP, is the Attorney General of Ontario and Minister of Aboriginal Affairs

As a society, from time to time, people get caught in our justice system here, through no fault of their own, so what we have got to do is ask ourselves how we make this thing that went wrong right. That’s fundamentally the question that the Attorney General is going to have to advise me on.

The Attorney General’s answer to the Premier’s question is “we should do nothing”. He finds that the Crown and police acted with integrity as if Mr. Baltovich’s wrongful conviction fell out of the sky. He ignores that, at Mr. Baltovich’s first trial, the Crown and police failed to disclose a considerable volume of evidence that later helped prove Mr. Baltovich’s innocence. All this, coming 18 months after the request to the Attorney General for compensation, is appalling.

When he was charged, Mr. Baltovich had just graduated with honours from the University of Toronto. After spending 18 years facing the charge of murdering the woman he loved, eight of them in prison, he should be compensated. This is the way a civilized justice system should work. The Premier captured the essence of the issue in his statement – the need to make right something that went wrong. Regrettably, Mr. Baltovich will now have to hire civil counsel and bring an expensive and contentious lawsuit against the Attorney General, the Crowns and the police. The case will go on for years more when the Attorney General could, and should, have brought it to a simple and just conclusion. James Lockyer is the Founding Director of the Association in Defence of the Wrongly Convicted and is Counsel to Robert Baltovich

April 2010 | Briefly Speaking • En Bref

Update on Paralegal Regulations Steven Rosenhek

rior to Ontario becoming the first jurisdiction in North America to enact a comprehensive regime for paralegal regulation, the OBA Paralegals Task Force had been active for many years in advocating and making proposals for the

regulation of paralegals.

The Paralegal Task Force did not consider its work completed when in October 2006, the Legislature passed the historic amendments to the Law Society Act enabling the Law Society of Upper Canada to licence and regulate paralegals. The Paralegal Task Force has continued to work since that time to ensure that the regulatory regime is constantly improved, all with the goal of enhancing the protection of the public. The Paralegal Task Force provided comments when the Law Society undertook the statutory two year review which focused on the implementation of the regulatory process. During the summer and fall of 2009, the Law Society Paralegal Standing Committee requested recommendations regarding possible amendments of the by-laws relating to paralegal exemptions. With input and assistance from many OBA volunteers from several Sections, the Paralegal Task Force made a number of recommendations for changes to some of the existing exemption provisions. (View the full September 2009 OBA submission at http://www.oba.org/ en/pdf/LSUC_Paralegal_Submission_Sept.2,2009.pdf)

Many of these recommendations were adopted in the Paralegal Standing Committee Report to Convocation made on January 28, 2010. The following recommendations in the Report to Convocation came, in whole or in part, from the OBA submission: That the following exemptions be amended: •

•

Acting for a family member, friend or neighbour - that this exemption be divided into two parts, one for immediate family, such as a parent representing a teenage child, and one for ‘friends’ narrowly limited to two or three occasions in a calendar year. Ontario Professional Planners Institute: that this exemption be reformulated to clarify that professional planners and like professionals can appear at local committees of adjustment.

Briefly Speaking • En Bref | April 2010

That the following exemptions be given further consideration, including further consultations with affected parties: •

ther profession or occupation, member of O accrediting associations:

•

he Board of Canadian Registered Safety T Professionals

• • • •

uman Resources Professionals Association of H Ontario Appraisal Institute of Canada

ffice of the Worker Adviser and Office of O the Employer Adviser Injured Workers

That the following exemptions be continued: •

Trade Unions and persons designated by the Ontario Federation of Labour.

Convocation adopted the report of the Paralegal Standing Committee in January 2010. Some of the recommendations will require legislative amendment, therefore the work of the Law Society and the OBA will continue.

The Task Force thanks the many dedicated OBA volunteers who participated in the consultations and the making of these recommendations. OBA members can remain confident that the Task Force maintains an ongoing dialogue with the Law Society on paralegal regulation, and will continue to represent the views and concerns of OBA members as the regulatory process evolves in Ontario Steven Rosenhek is a past president of the OBA and is the chair of the Paralegals Task Force.

Auto Insurance Changes Coming this Summer Richard C. Halpern

n November 2009 the Ontario Ministry of Finance announced proposed changes to the provinceâ&#x20AC;&#x2122;s auto insurance system. These new initiatives follow a review by the Superintendent of the Financial Services Commission mandated by the Insurance Act.

The amending regulations were released

March 2, 2010 and have targeted September 1, 2010 for implementation. While calls for reform came from many different stakeholder groups, including the OBA advocating for improved access to justice, it is safe to say that the reforms focus primarily on upward pressure on premiums stemming from a rather poor fiscal performance by auto insurers over the last 24 months. Insurers once again find themselves in the trough of their profit cycle, and the need to address the immediate concerns arising from that problem (sudden premium increases for the driving public if costs are not controlled) is giving rise to government initiated cost reductions. The Minister of Finance has formed a Reform Implementation Steering Committee to facilitate the timely introduction of the proposed reforms.

The most significant changes will be made to the first party (no-fault) benefit system. Accident victims suffering non-catastrophic injury will see the available benefit limits slashed and in some cases eliminated, along with the introduction of extensive optional coverage. Additional savings to insurers will be provided by changes to the benefit qualification criteria, making it more difficult for injured people to 20

access benefits. Significant savings to insurers are likely to come out of the new Minor Injury regulation, which will see many accident victims confined to a maximum benefit recovery of $3,500. Throughout the process leading up to the reforms, medical assessment costs were identified as one of the major problems affecting the cost of administering the first party benefit system. The solution proposed to address this significant burden, by limiting the cost of an assessment to $2,000, is likely to be beneficial to insurers but detrimental to injured people. As first announced, assessment costs were to have a limit of $2,000. A reading of the announcement may have suggested that the total cost, no matter how many assessors, would not exceed the limit. It appears that the new regulation will permit multiples of $2,000 to be charged where there are multidisciplinary assessments. This is a harsh reality for injured people who will now see the cost of any assessments they commission come out of their medical and rehabilitation limits. As between insurer and insured an already April 2010 | Briefly Speaking â&#x20AC;˘ En Bref

unlevel playing field has been tipped further to the benefit of the insurer.

Despite recommendations made by the then Superintendent to ease tort restrictions, consistent with submissions made by the OBA, the proposed reforms contain little to address limits on access to justice. The only change for tort claims involves the elimination of the deductible of $15,000 on fatal accident claims. The regulation defining the verbal threshold and the increased deductibles on general damages introduced in 2003 will remain, for now. The new reforms have serious shortcomings for Ontario consumers and injured accident victims, which may be mitigated only slightly by the available optional coverage. Whether a meaningful number of consumers purchase optional coverage remains to be seen. These reforms are being implemented to address what is perceived to be an immediate problem in the auto insurance system. These changes are nothing more than a short-term fix and fail to address access to justice issues. The real problems facing Ontario’s auto insurance system have yet to be adequately addressed. On a positive note, the Minister of Finance and the Superintendent of FSCO have indicated a willingness to look more deeply into ways to improve auto insurance following implementation of these short-term measures. The OBA, through the Auto Insurance Working Group, is an integral part of that process as a member of the reform implementation committee. We hope to report some positive progress after September 1st when these new measures are firmly in place. Richard C. Halpern is a partner at Thomson Rogers and is the chair of the OBA’s Working Group on Auto Insurance Reform.

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Briefly Speaking • En Bref | April 2010

The OBA Enhancing Diversity in the New Decade Esi Codjoe

On December 4, 2009 a diversity panel was convened at the OBA’s quarterly Council meeting. Six speakers participated in, and led a discussion concerning methods that can engender diversity within the legal profession.

The speakers were: David Lepofsky, counsel, Ministry of the Attorney General; Terrie-Lynne Devonish, chief general counsel, AON Canada; Cynthia Nixon, partner, Sack Goldblatt Mitchell LLP, and diversity counsel at the Law Society of Upper Canada; Arleen Huggins, partner, Koskie Minsky LLP; Jeffrey G. Hewitt, general counsel, Rama First Nation; and Mile Komlen, director of Human Rights and Equity, McMaster University. The panelists addressed issues connected to disability, gender, race, and sexual orientation.

A number of recommendations were made regarding steps the OBA could take to promote diversity; these suggestions included the following points: 1.

The OBA website could include a directory of equity seeking legal organizations – e.g., the Canadian Association of Black Lawyers and the South Asian Bar Association (SABA);

Provide mini seminars to law firms regarding how to initiate and successfully run an equity committee; Bring together a number of equity resources/materials to a central spot on the OBA website; Encourage and assist law firms with the implementation of part time work arrangements/partnerships; Provide education/training to firms around challenging bias and assumptions based on code grounds;

Set up an OBA Accessibility Task Force; could develop accessibility check lists for firms and organizations, and potentially could work with the OBA Courts Accessibility Committee;

Provide education/coaching to law firms on the business case for diversity: namely, clients are increasingly diverse both at the executive and ownership levels, and they expect diverse law firms.

The panelists were ad idem that progress has been achieved over the past ten years; however, more work is still needed to achieve a bar that supports and reflects diversity. In recent years Ontario law schools have begun to reflect the diversity of the Ontario population. However, the presence of diverse individuals in law schools does not necessarily equate to law firms that reflect the population. For example, Jeffrey G. Hewitt noted that there is often an assumption that Aboriginal law students are only interested in Aboriginal law; consequently, private practice opportunities are foreclosed. He encouraged the profession to have an expansive view of diversity, and to think beyond preconceived notions of race or culture.

Terrie-Lynne Devonish also challenged the profession to further diversity in the profession. She spoke of her experience with requests for proposals with law firms. As a chief general counsel, Terrie-Lynne Devonish has made diversity, and a systematic plan to forward same, a pre-requisite to doing business with the AON Corporation. This approach is significant; as diverse lawyers gain senior positions in corporations their scope of power is broad.

Moving forward the OBA will develop a multi-year plan to execute some of the recommendations made by the panel, and council. The Equal Opportunity Committee will work with the Board of Directors to implement the priority recommendations. Esi Codjoe is counsel at the Ontario Nurses’ Association, and chair of the Equal Opportunity Committee.

April 2010 | Briefly Speaking • En Bref

Snapshots

OBA Vice President Lee Akazaki (2nd from left) and OBA Treasurer Jonathan Yen (3rd from left) enjoying the hospitality of HSBC at the Hong Kong Canadian Business Association New Year’s Ball.

OBA Professional Development | Materials

Purchase great Materials froM great oBa PrograMs • • • • •

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www.oba.org/pd

Briefly Speaking • En Bref | April 2010

Gowlings Celebrates 20 Years of Environmental Law Harry Dahme

n February 4, 2010 Gowlings celebrated two decades of its leading specialized environmental law practice.

“Most Frequently Recommended Environmental Law Group” in a Major Full Service Firm: Lexpert Canadian Legal Director, 2009.

Gowlings has achieved this prominence as a result of the talent and experience of the full-time environmental law specialists and associates who have joined the firm over the last 20 years. In January 2010 it will have been two decades since David Estrin Barristers & Solicitors joined what was then Gowling Strathy & Henderson. David Estrin and OBA member Harry Dahme joined OBA member Mark Madras to found the Gowlings Environmental Law Group. These three certified environmental law specialists formed the original nucleus of the Environmental Law Group’s reputation for expertise and high quality of work. Although David Estrin had been practising in the area of environmental law since the 1970’s and Mark Madras and Harry Dahme had been practising in this area since 1984, prior to 1990 and the formation of the Gowlings’ Environmental Law Group, environmental law was predominately a niche area practised by lawyers whose primary focus was usually in some other area of law. The formation of the Environmental Law Group at Gowlings reflected what was then a fundamental shift in the nature of

the practice of environmental law. The creation of the Group coincided with the growing awareness in the legal and business community that environmental issues were no longer on the fringe, but were rather significant issues that would have to be considered in the course of most day-to-day business. Since 1990, environmental laws have become even more important for the business community and consideration of environmental issues has become a significant factor in decision making, whether by government or by business. The changes in laws, combined with greater awareness of environmental issues, has led to growth in the number of lawyers now practising.

In the case of Gowlings, the environmental law practice has grown to national stature, and is coordinated through the firms’ National Environmental Law Practice Group. This includes recognized specialists Paul Granda in Montreal and Alan Blair in Vancouver, as well as dedicated associate environmental lawyers in most Canadian offices, providing service to Gowlings clients from one of Canada’s leading environmental law practices. The Group has achieved many milestones, including publication of its authoritative and continually updated book, Business Guide to Environmental Law (Thomson Reuters). Harry Dahme, Leader, Gowlings Environmental Law National Practice Group

April 2010 | Briefly Speaking • En Bref

First Time Women Lawyers’ Symposium Stresses Balance and Choice Margot MacPherson Brewer Lawyer Michele Allinotte of Cornwall is confident about the decision to open her own practice in October 2009. “I’m my own boss,” she says. “It allows me to create the vision I want for my work and family life.” She acknowledges it is a daily balancing act to fulfill multiple roles as sole practitioner, wife and mother of two young children but likes the sense of control that comes with being self-employed.

Allinotte is one of 122 women from around the province who came to Ottawa to attend the daylong symposium Fostering and Celebrating Success: A Forum to Equip, Inspire and Support Women Lawyers in Private Practice in Ontario. She is precisely the type of practitioner the organizers wanted to reach with this unique networking and learning opportunity.

Conference co-chair Fay Brunning says this symposium was the logical next step for a growing movement that seeks better support for women lawyers at all stages of their careers. “We know women are leaving private practice in record numbers and it has to be asked: who is left to administer justice in Ontario? We have to be concerned about the balance.” Although women in law schools outnumber men today and

“We have to be concerned about the balance.”

more women are being called to the Bar, retention is an ongoing issue. Women are leaving the profession at a rate of three to one over male colleagues in the first ten years following their call. The changing demographic directly affects the experience for nearly 90 percent of Ontarians for whom a private practitioner is their first point of contact with the legal system.

The Law Society of Upper Canada’s (LSUC) benchmark 2008 study on Retention of Women in Private Practice led to a three-year pilot program that is the first in Canada. The Justicia Project works with 57 Ontario law firms to support the retention and advancement of Ontario women lawyers in private practice through initiatives such as the Locum Registry, parental leave assistance and professional development opportunities such as this symposium, which was a recommendation of the study.

yers who are mothers or someday want to have a family, was a key message. The consensus is that the culture of law firms must fundamentally shift to one that is more “family friendly” if women are expected to stay in the profession long term. Another key theme was that a law career, like life, ultimately is shaped by one’s personal choices. “In French there is a saying: “Prendre son courage dans ses mains,” says conference co-chair Lise Parent. “Women’s success ultimately comes from taking responsibility for their career into their own hands.”

Psychiatrist and motivational speaker, Dr. Mamta Gautam, described the “typical personality” that is drawn to demanding professions like medicine and law. The biggest challenge for high functioning, bright professionals, she says, is that there can be too many competing and attractive options. “You must make the choice of taking care of yourself a priority,” she advises. “If you are not here, you don’t get to make any other choices.”

The symposium allowed women lawyers to share insights and build a greater sense of solidarity about the challenges they face and changes needed to accommodate family and work responsibilities. That message hits Michele Allinotte particularly close to home. At a break, she discloses that her six-year-old son John’s school just called from Cornwall to say he was taken to hospital in need of stitches for a minor head wound. She is relieved his Dad and her parents are with him but she is clearly torn. “Ironic, isn’t it?” she says. “I came here to further my career when all I want to do is be there to give him a big hug.”

Allinotte is at least reassured she can share her concerns with other professionals who are not only are willing to listen, but who can relate.

Margot MacPherson Brewer, M.A., LL.B. is a lawyer and writer living in Ottawa

Advice and encouragement, particularly for women law-

Briefly Speaking • En Bref | April 2010

JUST FOR LAUGHS

The Wisdom of Solomon: The Sequel Marcel Strigberger

find that many landmark legal decisions are not sufficiently reported. Consider for example the story about the two women who appeared with a newborn baby before King Solomon, each claiming the baby was hers. One mother’s baby was stillborn and she wanted a shot at recovering her neighbour’s living child. Solomon offered to cut the baby in two, giving one half to each woman. At that point, the real mother offered to let the other woman have the whole baby, while the fake mother agreed to take half thereby alerting the wise king that the latter woman was bogus.

The problem with this report is that it ends there. Nowhere are we told what became of this child, or of the “mothers” for that matter. I have done some investigation and indeed matters did not end there and then.

Firstly, the phony mom’s name was Myrtle, Myrtle daughter of Zebulun. His Highness not only denied her the child, he also fined her 100 shekels for attempted fraud. When Myrtle related this incident to her husband Albert, son of Levi, her husband was livid. 26

“You fell for that ‘I’ll cut the baby in two’ line? That’s the oldest trick in the book!” he bellowed. Albert’s second wife, Naomi daughter of Nimshi, added smugly, “You fool. I told you it wouldn’t work. Solomon isn’t stupid. I don’t know what Albert ever saw in you.”

Interestingly enough it seems that Myrtle tried a similar caper three years earlier in the land of Goshen. This time when the King of Goshen, Og, offered to cut the baby in two, she immediately responded, “No, let the other lady have the child”, whereupon King Og, said, “No problem madam”, and he gave the infant to the other woman. Eventually Myrtle and Albert attended at the Child Service office where they put their names on the adoption list. This time Albert did all the talking.

And what do you think happened to our famous baby? The real mother, Tamara daughter of Yehu, was ecstatic. So was her husband, Jeremiah the milkman. (Nobody knew who his father was). Three days later the couple had the baby ritually circumcised. The parents by this time were nonetheless a bit paranoid about people with knives and they watched the rabbi very carefully. They named the baby Isaac, Isaac son of Jeremiah the bastard.

King Solomon was the talk of the party that followed. Tamara couldn’t stop raving about the wisdom of His April 2010 | Briefly Speaking • En Bref

JUST FOR LAUGHS Highness. “As I stood there”, she said nibbling on a piece of herring, “I trembled, and when I saw the king take out his huge sword and measure off little Isaac to find the mid point of his belly, I thought that was it.”

Little Isaac was a celebrity for many years. Tourists visiting Jerusalem would pass by his parents’ house hoping to catch a glimpse of the boy. The government in fact for many years sponsored daily shows, whereby Isaac would stand at his window three times a day and wave to the crowds. As well he often went on tour. During his growing years little Isaac spent many a day cutting ribbons at openings of bridges, museums and sacrificial altars. The government even promised a sizeable stipend to the boy once he would reach his adulthood.

Eventually Isaac started to shun publicity and ultimately he grew up to become a humble baker. He enjoyed his work but hated cutting bread. Every time a customer asked him to cut a whole loaf of bread, he identified with the bread. Once when a lady insisted on buying just half of the last pumpernickel, he told her “No way” and he gave without charge the entire loaf to another customer who had offered to buy the whole bread. He explained to the half bread lady, “She wanted it more than you did.”

The psychological ramifications of King Solomon’s judgment were evident. This event was so popular that eventually a playwright, one Herschel son of Herschel (he wasn’t Jewish) wrote a musical play about Isaac entitled, The King and I.

And what became of the wise King Solomon himself you might ask? When interviewed, he modestly declined to label the decision as one of extraordinary wisdom. When asked what he would have done had neither mother offered to let the other mother have the child rather than see him cut in two, His Highness said, “Who knows? What would Moses have done had the Red Sea not parted? You cross that bridge when you get to it.

King Solomon then excused himself saying he had to get back to his 1000 wives. And by the way, you may ask what ever happened with that stipend the government promised it would pay Little Isaac when he grew up? That one is still before the courts. Marcel Strigberger is a humourist trapped inside the body of a civil litigation lawyer- see www.legalhumour.com

Save the date CBA Canadian Legal Conference in Niagara from August 15-17

Marquez vos calendriers ! Du 15 au 17 août 2010, la Conférence juridique canadienne de l’ABC aura lieu à Niagara!

CLC events will ensure you take in the full beauty and excitement of one of Canada’s premiere wine regions. The main conference sessions are taking place at the Sheraton on the Falls with receptions and events throughout the vineyards of Niagara. Opening Night Festivities at Table Rock Center are at the brink of the thundering falls while the closing evening will let you explore wine country.

Les activités entourant la CJC vous permettront d’apprécier pleinement la beauté et le dynamisme d’une des régions vinicoles les plus prestigieuses du Canada. Les séances principales de la CJC se dérouleront à l’hôtel Sheraton on the Falls, tandis que des réceptions et activités sont prévues dans l’ensemble de la région des vignobles. Les festivités de la soirée d’ouverture au Centre Table Rock auront lieu à proximité des chutes rugissantes, alors que la soirée de clôture vous permettra d’explorer les vignobles.

2010 – A very good year!

2010 – un grand cru!

Watch for registration details in early spring at www.cba.org/Niagara2010

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Briefly Speaking • En Bref | April 2010

Les renseignements sur l’inscription seront diffusés au début du printemps prochain à www.cba.org/Niagara2010.

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THE CONFERENCE CENTRE AT THE OBA

Book your meeting with us. Our full-service facility is available year round.

Located in Toronto’s downtown core, the Ontario Bar Association’s Conference Centre hosts a variety of events, mediations, conferences, seminars and receptions year-round, seven days a week. Our facility can accommodate meetings from 3-300 people in various styles such as: banquet, theatre, classroom and open square. Our services include: video conferencing, full catering capabilities and we are licensed for liquor. Our building has 24 hour security, wheel chair accessibility and is steps to the King Street Subway station and only a 10 minute walk to GO. Our knowledgeable staff is here to service your needs, whether they are simple or out of the ordinary. Contact our Conference Centre manager, Annette Wing, at (416) 869-1047 ext. 321 or by e-mail at awing@oba.org. You can also visit our website at www.oba.org.

All OBA members receive a 15% DISCOUNT on room rentals THE CONFERENCE CENTRE at the OBA 200-20 Toronto Street | Toronto | Ontario | M5C 2B8

April 2010 | Briefly Speaking • En Bref

Molière, Mauritius and Enjoying the Stars Filippo Conte

he OBA is fortunate to have one of Canada’s most experienced and well known French instructors lead our popular French Without Tears classes;

University of Toronto Professor Emeritus, Ordre des Palmes

Académiques

recipient,

Toronto

Francophone

theatre director, world traveler and all-round treasure Paulette Collet. Teaching for close to 60 years, Paulette’s first position was in Mauritius in the early 1950’s. A French government job as an education officer brought her to what was then a French island colony - with a set of varied responsibilities which included school inspections, language lessons, student counseling and even instructing gymnastics.

After eight years in Mauritius, Paulette arrived in Canada to pursue a PhD in French Canadian literature at Laval University. Her passion for 17th century French literature and her new chilly Canadian location lead her to select the French Canadian novel as her thesis subject. She completed her PhD in 1962 - her thesis was published and is still available through Amazon.com.

Although her background is in teaching French literature, including French Canadian literature, nothing compares to the satisfaction of teaching novices the French language. While she enjoys teaching all levels, there is a sense of clear development with beginner students that is less evident with advanced students. Her love for teaching is rooted in her innate desire to interact with students and follow their progress. In 1992, upon her retirement, fate brought her to the OBA when an ex-student proposed she offer lessons to staff. She later took over the classes offered to members and now, 18 years later, she is a valued OBA fixture, and the French Without Tears classes an institution. It is safe to say Paulette is considered a niche educator - now teaching at the OBA, the Law Society and at least two firms in Toronto. She notes busy lawyers sometimes miss classes, resulting in difficulty keeping up; however, Paulette says, “Lawyers are a pleasure to teach. Lawyers, unlike some university students, take French Without Tears because they want to learn, so they make more progress than those who have to do it.” Paulette has a memory of steel and has written or been involved in numerous books, most famous of which is a French adaptation of the Phantom of the Opera read by many Canadian students, including myself. When I asked how many books she Briefly Speaking • En Bref | April 2010

has been involved in, she modestly says, “I haven’t counted, but quite a few.” A recent book about French theatre in Toronto took her on a journey of self-exploration where she realized her love of theatre and performing stems from her childhood in Belgium. Surrounded by performers in an age before television was prolific, after-dinner entertainment came in the form of singing and reciting. Though she acted in school plays and recited during radio shows, for which she won competitions, her family urged her to follow her studies. When the Second World War broke out she moved to England to the safety of her aunts in the English countryside.

Along with her enthusiasm for teaching, Paulette is an avid director of French plays in Toronto. Her Troupe des anciens performs for school groups and the public. The troupe usually performs plays by Molière, although this year Molière’s, “Le Médcin malgré lui” will be joined by the first act of Marcel Pagno’s Topaze to ensure the student audience is engaged. Paulette knows most of the plays her troupe performs by heart, so part of directing is making certain the actors’ French is clear and understandable, which she ensures through constant correction. Her ideal play to direct? A play with a strong women’s role, like Racine’s Phèdre. Paulette believes that growing old has given her an understanding to appreciate small things. “When you are young, you want the moon, and if you don’t get the moon you don’t want anything else. I learnt you don’t get the moon, but there are so many little stars that you can enjoy.” The stars in her sky come in the form of her love of travel, opera, great food, lovely things and of course the love of her husband of 27 years, Thomas Mezcol, and that of her dear friends. The Troupe des anciens’ 2010 play will take place on April 16th and 17th at the George Ignatiff theatre. For further information please call 416-422-1204. For more information about French Without Tears, please contact Filippo Conte at fconte@oba.org

Institute 2010 The 35th Annual OBA Institute of Continuing Legal Education

n February 16th, over 1,300 registrants, program chairs, speakers and exhibitors gathered at the Royal York Hotel to participate in 21 CLE programs, a keynote address, a bi-lingual breakfast, the Young Lawyersâ&#x20AC;&#x2122; Division breakfast, and two receptions.

Institute 2010 kicked-off with a welcome from Co-Chair Janice Vauthier, who introduced the keynote speaker, Dr. Samantha Nutt, Founder of War Child Canada, who reminded us about our social responsibilities as citizens. Dr. Nutt was a powerful, inspirational speaker who challenged us to go beyond our day-to-day practice to remember why we entered the legal profession and to commit ourselves in new ways to advancing the rule of law. Throughout the rest of the morning and afternoon, the registration area was abuzz with practitioners and speakers picking up their registration kits and being directed to their respective CLE sessions.

Thanks to the Main CLE-Institute CLE Committee and all the program chairs and speakers who generously donated their time and expertise to making Institute a success.

MARK YOUR CALENDARS NOW FOR INSTITUTE 2011

Co-Chairs Janice Vauthier and Andrew Pinto are excited about Institute 2011, which will take place on February 3-4, at the Royal York (criminal Justice at the OBA on February 5).

The criminal justice program, which was held on February 20th at the OBA Conference Centre, comprised over 100 registrants and speakers who discussed the strategies, complexities, mysteries and challenges of running a criminal trial. 30

April 2010 | Briefly Speaking â&#x20AC;˘ En Bref

Participant chats with exhibitors from CBIA and CBAF

Institute 2010 Co-Chair Janice Vauthier welcomes participants

Pensions and Benefits: The Next Generation

OBA President Carole J. Brown and OBA Vice President Lee Akazaki with Co-Chair Janice Vauthier and participants.

Participants enjoy lunch in the Fairmont Royal Yorkâ&#x20AC;&#x2122;s Canadian Room. Briefly Speaking â&#x20AC;˘ En Bref | April 2010

Keynote speaker Dr. Samantha Nutt (centre), with (left to right) OBA Past-President Jamie Trimble, OBA President Carole J. Brown, Institute CoChair Janice Vauthier and OBA Vice-President Lee Akazaki.

Insurance Law: The Insured Professional

Participant chats with exhibitors from the Law Times and Canadian Lawyer. 32

Dr. Samantha Nutt, Founder of War Child Canada, delivers keynote address April 2010 | Briefly Speaking â&#x20AC;˘ En Bref

Trusts and Estates: Grave Consequences: Traps and Pitfalls in Contemporary Estates Law

Mr. Justice Michael Dambrot (SCJ) Madam Justice Gloria Epstein (Ont. Court of Appeal), Mr. Justice Michael Moldaver (Ont. Court of Appeal) and Madam Justice Leslie Pringle (Ontario Court of Justice)

Former OBA President James Morton

Briefly Speaking â&#x20AC;˘ En Bref | April 2010

Mr. Justice Peter West, Madam Justice Mary Lou Benotto, Mr. Justice James MacPherson 33

DAY 2010 LAW 20

Law Day is Everyday WHILE YOU HAVE STUDIED LAW AND PRACTISE IT DAILY, MOST MEMBERS OF THE PUBLIC HAVE HAD LIMITED ENGAGEMENT WITH THE LAW. Be it in negative ways or positive, a will or maybe divorce, a small claims matter or even simply watching one of the popular primetime “law-based” TV shows. But what if you haven’t been involved in a law related matter? And even if you have, what do you really know about the law?

With more than 12 programs in more than 80 centers around the province, Law Day programs take place throughout a full Law Week; engaging communities from Aurora, Barrie and Cornwall, to Windsor, Wawa and Waterloo, from Thunder Bay, down to Timmins, through Thornhill to Toronto - and Ottawa too.

IT IS FOR MEMBERS OF THE PUBLIC THAT THE OBA ORGANIZES PUBLIC LEGAL EDUCATION PROGRAMS.

WHILE OTHER PROFESSIONS HAVE ONE DAY - BE IT ENVIRONMENTALISTS WITH EARTH DAY OR HEALTH CARE PROFESSIONALS WITH HEALTH DAY, WE HAVE AN ENTIRE WEEK!

It is for members of the public that a free legal advice network webs through Ontario every year. It is for members of the public that every year you, and hundreds of your colleagues, come together to engage students in elementary and secondary schools province-wide. It is for members of the public that Law Day takes place. Law Day takes place to educate and promote the importance of the rule of law and our Charter of Rights and Freedoms.

We’ve worked to ensure community involvement in rural areas and Francophone communities. Work with OBA Sections, as well as collaborations with other legal organizations at the forefront of student legal education and a group of dedicated advocates for the profession ensure Law Day’s success. Not to mention the generous and important investment to Law Day by the Law Foundation of Ontario and the OBA’s charitable branch, ALERT.

So, while Law Day / Law Week is the OBA’s single largest public legal education program, it is also the perfect opportunity to give back to your community with what you know best the law. To take hold of Law Day, please visit www.lawdayontario.ca or www.lajourneedudroit.ca For further information about the Law Foundation of Ontario, visit www.lawfoundation.on.ca

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Taking parT is easy: You make all The difference. 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.

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April 2010 | Briefly Speaking • En Bref

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is an experienced litigator practising since 1983 in commercial, family and personal injury litigation primarily and has acted as lead counsel on a number of precedent setting cases. A member of the New Brunswick and Nova Scotia Bar, he was appointed Q.C. in 2007. Possessing a Business Administration Degree (1980) Bachelor of Law (1983) and Masters of Law (ADR) (2002), he is available for MEDIATIONS, ARBITRATIONS and CONCILIATIONS in litigation throughout Canada. Mr. Murphy is fluently bilingual, having practised and tried cases in both official languages throughout his career. He is the former Minister of Health, Attorney General, Justice Minister and Goverment House Leader for the government in New Brunswick.

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Briefly Speaking • En Bref | April 2010

CBA Mid-Winter Meeting of Council

BA COUNCIL MEETS TWICE A YEAR to discuss questions of policy and public interest as submitted

through the Resolutions, Constitution and By-Laws Committee. The 2010 Mid-Winter Meeting was held on February 13-14 at the Fairmont Château Laurier in Ottawa.

RESOLUTIONS The resolutions passed at the Mid-Winter Meeting determine the association’s position on current legal issues and governance of the CBA, and promote the CBA mandate. BE IT RESOLVED THAT the Canadian Bar Association urge federal, provincial and territorial governments to support and promote the harmonization of pensions legislation and regulation across Canada.

BE IT RESOLVED THAT the Canadian Bar Association urge federal, provincial and territorial governments to support and promote reasonable measures to increase the funding and security of pension benefits, with appropriate consideration of the impact of such measures on pension plan sponsors, pension plan members and other stakeholders.

BE IT RESOLVED THAT the Canadian Bar Association join with the Government of Canada and the international community to denounce Uganda’s Anti-Homosexuality Bill, 2009 and any similar legislative proposal that criminalizes homosexuality including the continued criminalization of consensual sexual contact between adult homosexuals, enforced reporting of homosexual conduct and the imposition of the death penalty against homosexuals suffering from HIV. BE IT RESOLVED THAT: (a) The name of the Continuing Legal Education Committee be changed to the Professional Development Committee; and (b) Terms of reference for the Committee be added to Article 9(3) of the CBA Regulations as follows: “The Professional Development Committee is dedicated to improving and promoting the knowledge and skills of members of the legal profession. It is responsible for the planning, development and delivery of seminars, conferences, publications and other programming on topics of national or international interest to the legal profession.”

(c) References to the Continuing Legal Education Committee be changed to the Professional Development Committee throughout the CBA Bylaws and Regulations. DOUGLAS MILLER AWARD

René Basque of Moncton has been named winner of the CBA’s Douglas Miller Award. The award was presented by CBA President Kevin Carroll at the President’s Dinner. The Douglas Miller Award honours the late Doug Miller of Yellowknife, a former president of the Association’s Northwest Territories Branch and a very active CBA member who passed away in 1994. The award recognizes a CBA member who demonstrates outstanding dedication and team spirit.

Known for his “joie de vivre” and sense of humour, René Basque is a natural leader who consistently earns the respect of his colleagues. He participates vigorously in debate and never hesitates to express his views in all matters affecting the association.

A past president of CBA-New Brunswick, René Basque has sat on the National Board of Directors, the Awards Committee and on the Canadian Bar Insurance Association. He is an adjudicator under the Canada Labour Code, and has lectured at the Bar Admission course and at the Université de Moncton Faculty of Law. NATIONAL CLASS ACTIONS TASK FORCE

The Mid-Winter meeting marked the launch of a new CBA task force to address the difficult challenge of overlapping, multijurisdictional class actions which not only impede access to justice but also create confusion for the public. “The public, plaintiffs and defendants, the judiciary and the litigation bar are becoming increasingly frustrated by jurisdictional overlap caused by provincial class actions claiming to represent national classes,” says CBA President Kevin Carroll. The Task Force will focus on two possible solutions: a judicial protocol as an interim solution in order to ensure better coordination between the courts in different provinces, and to avoid duplication as well as inefficiencies; and the development of permanent, legislative amendments in each province that would be accepted by all stakeholders and be constitutionally sound. ATTORNEY GENERAL PRAISES OBA

Guest speaker, Ontario Attorney General Chris Bentley addressed the CBA Mid-Winter Meeting and commended the OBA for the organization’s cooperative approach to justice reform. “The Ontario Bar Association has been a key partner in creating a better justice system in Ontario. By building consensus on a broad range of issues, the OBA has helped Ontario chart a path forward on family law reforms, the recent investment in Ontario’s legal aid system, civil reforms, and addressing criminal court delay.

The OBA actively worked with all parties who provide legal aid services to ensure the recent $150 million investment the government made supports those dedicated members of the bar who do the work and those who receive the services. I look forward to continuing to work with the OBA as we improve access to justice for all Ontarians.”

April 2010 | Briefly Speaking • En Bref

OBA Professional Development

Calendar of UpComing programs lawful access: perspectives on privacy, police and provider – Monday May 3 marketing law: from advertising 101 to 3.0 – Thursday May 6 simplifying simplified procedure – Thursday May 6 Criminal law: Your Client from start to finish (Yld) – Saturday May 8 8th annual pension and Benefits Hot spots: essential Updates on Key legal issues – Monday May 10 Commercial leasing: The “must Know” Update – Wednesday May 12 an introduction to restructuring Under the CCaa - insolvency – Tuesday May 18 The lawyer as estate Trustee and/or attorney for property/personal Care: Things You need to Know – Thursday May 20 What a Waste: ontario’s garbage, stewardship ontario and the Three r’s – Thursday May 20 Current issues in Workplace safety and insurance law – Wednesday May 26 insurance/Civil litigation end of Term dinner – Thursday May 27 oBa award for excellence in Trusts and estates Year end dinner – Tuesday June 1 oBa award for excellence in pensions and Benefits Year end dinner – Wednesday June 2 natural resources – Year end dinner – Thursday June 3 Taxation law – Year end address – Thursday June 10 real property award dinner – Thursday June 10 ontario’s Human rights system: Keeping on Top of Key developments – Friday June 11

www.oba.org/pd for more information

Briefly Speaking • En Bref | April 2010