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Monday, October 21, 2013

PLAINTIFF SUING CASSELS BROCK AWARDED $300K IN COSTS

The Ontario Superior Court has awarded the plaintiff in a class action against Cassels Brock & Blackwell LLP almost $300,000 in costs related to a certification motion.

Representative plaintiff Jeffrey Lipson is among those unhappy with Cassels Brock for providing a favourable tax opinion about charitable donations. He launched the class action after the Canada Revenue Agency disallowed anticipated tax credits.

While the Superior Court initially denied certification, the Ontario Court of Appeal reversed that decision earlier this year. It also sent the matter back to the Superior Court to consider costs for the certification motion. Lipson sought $355,000 (or, alternatively, almost $299,000 on a partial indemnity basis) while Cassels Brock argued the amount was excessive and suggested $100,000. Among other things, Cassels Brock suggested class counsel “was inefficient in involving five lawyers and no students” and that claiming almost 330 hours for legal and factual research was excessive, wrote Justice Paul Perell in his Oct. 16 ruling in Lipson v. Cassels Brock & Blackwell.

Given the two years since the certification motion, Perell said it was difficult to tell whether class counsel “indulged itself in running up costs in expectation of financing the rest of the litigation and thereby reducing the risk of its involvement in precariously risky litigation.”

But he expressed concern about the “ever-upward spiral in costs awards” that mean “there is little incentive to do only what is necessary for certification and little to curb the tendency to use the certification motion as a road test for the merits of the litigation, notwithstanding that the focus on the certification motion is whether the certification criteria are satisfied and notwithstanding that the some-basis-in-fact evidentiary standard in this regard is very low.”

While he found merit to the argument that up to $350,000 in costs was excessive, Perell also disagreed with Cassels Brock’s submission of $100,000.

“I think the appropriate exercise of discretion is [to] award Mr. Lipson the $298,582.71 that he seeks but to make $150,000.00 payable to him by Cassels Brock in the cause and the balance of $148,582.71 payable forthwith,” wrote Perell.

APPEAL DISMISSED IN EVIDENCE RETENTION CASE

The Ontario Court of Appeal has dismissed an appeal seeking a constitutional declaration that would hold the government liable for missing pieces of evidence after a criminal conviction.

The court convicted Amina Chaudhary in 1984. When she later sought help from the Innocence Project at Osgoode Hall Law School, she learned that photographs referenced in the trial 30 years ago are now missing.

A lower court rejected her lawyer Alan Young’s bid for a constitutional declaration last year. It concluded that since the loss of the photographs hadn’t harmed Chaudhary, she couldn’t ask for such a declaration based on a violation of her rights under s. 7 of the Charter of Rights and Freedoms.

But at the appeal court, Young said Superior Court Justice Michael Dambrot didn’t quite understand what he was asking for. Chaudhary wasn’t claiming the loss of the images had already harmed her but that there’s “a reasonable apprehension of harm” in the future, he said.

In a ruling on Oct. 11, the appeal court said Young wasn’t challenging a decision made by Dambrot, a fact that left it without a role in the case.

“Because the appellant does not challenge the findings made by Dambrot J. but now seeks the declaratory remedy on a basis that is not set out in the record and was not the subject of adjudication by Dambrot J., there is no basis for the court to entertain an appeal,” the court said.

For more, see "How long should Crown have to keep evidence?"

NEW PARTNER AT DICKINSON WRIGHT

Dickinson Wright LLP’s Toronto office has another new lawyer. Cross-border restructuring and insolvency lawyer John Leslie has joined Dickinson Wright as a partner, the firm announced.

The firm has been expanding its presence in Canada by hiring new lawyers at its Toronto office in recent months. Leslie, who hails from international law firm Miller Canfield Paddock & Stone LLP, represents various stakeholders in major insolvency and restructuring proceedings.

“Over the past several years, he has been extensively involved in a number of auto industry-related insolvency cases in the United States and Canada,” Dickinson Wright said in a press release.

Dickinson Wright has more than 40 practice areas. Its Toronto office has about 35 lawyers.

LAO TO COVER AUDIO RECORDINGS

Legal aid lawyers will now receive a modest reimbursement for their digital audio recordings of proceedings at the Superior Court and the Ontario Court of Justice.

Legal Aid Ontario says it will pay lawyers $22 for a day’s worth of audio recordings. After the first day of proceedings, a lawyer will get half of that amount for the remaining days’ digital recordings.

Approval in advance isn’t necessary when a lawyer seeks reimbursement for a single day’s recordings, but counsel do need prior approval if the recording is of a proceeding lasting two days or more.

LAW COMMISSION SEEKING PROPOSALS

The Law Commission of Ontario is inviting members of the public and the legal profession to speak up about the areas of law they think should change.

The law commission says proposals are welcome from lawyers, members of the judiciary, academics, ministers, and members of the public. The response will help it in its reviews and recommendations about Ontario’s laws and policies.

“We encourage proposals from individuals and groups from across the province,” said executive director Patricia Hughes. “Making a proposal is as easy as sending us a two- or three-page description of the issue, why it matters, and why the LCO is the right body to review it. Longer proposals are also welcome.”

The law commission has already issued reports and recommendations about the law as it relates to people with disabilities, vulnerable workers, the family law system, the division of pensions on marital breakdown, and the Provincial Offences Act.

POLL RESULTS

The results of the latest Law Times online poll are in.

When it comes to Legal Aid Ontario staff lawyers’ bid for collective bargaining rights, respondents appear divided. A slight majority of respondents oppose the LAOstaff lawyers’ campaign with just 46 per cent of poll voters in favour.

Legal aid lawyers recently launched a campaign for collective bargaining. They say that if members of the Ontario Crown Attorneys’ Association and the Association of Law Officers of the Crown can have such rights, so should they.

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It's unknown how widely police in Ontario utilize controversial surveillance techniques that can capture private data from non-targets in criminal investigations. Do you think there should be formal requirements to release this information?
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