Monday, July 2, 2018

New Treasurer For LSO Ruling On Class Action Courthouse Tour Law Times Poll

Monday, July 2, 2018
Malcolm Mercer has been elected as the new Treasurer of the Law Society of Ontario.


Malcolm Mercer was elected as the Law Society of Ontario’s 67th treasurer on June 31, receiving 34 votes out of a total of 58 in a second round of voting.

Mercer was one of three candidates vying for the role, against Jacqueline Horvat of Spark LLP and Ross Earnshaw of Gowling WLG.

Mercer focuses on corporate law and matters of professional negligence as a partner in McCarthy Tétrault LLP’s litigation group in Toronto.

Before becoming treasurer, Mercer was elected twice to be an LSO bencher, in 2011 and 2015.  The LSO will focus on a number of projects in the vein of monitoring competency over the next two years, including licensing consultation and paralegal licensing in colleges, Mercer says.

“The traditional and still centrally important role of a self-regulator of professions to ensure entry-level competence is assured. When people come into practice, to ensure professional competence is maintained and developed and ensure professional conduct is maintained is not a small challenge. It’s a central challenge,” Mercer says.

“We are considering how to deal with the reality that many lawyers and paralegals don’t practise by themselves but practise in groups, and we are working to address how to take that reality into account in regulation.”


A judge has approved the fees and settlement for a class action suit brought against Nobilis Health and its accountants by an Ontario plaintiff. 

The Superior Court of Justice ruling includes an exploration of how lawyers can assess whether a settlement or fee is “reasonable,” even if it is imperfect.

The issue at hand in Cappelli v. Nobilis Health Corp. was whether accountant was negligent when it released audit results for Nobilis’ 2014 and 2013 financial statements. In January 2016, Nobilis said it would revise its previous financial statements for 2014, and for the first and second quarter of 2015. The company also announced that its previously issued registration statement should not be relied upon by investors.

Nobilis — which at that time owned and managed four surgical hospitals and five ambulatory surgical centers — saw shares drop from US$2.82 per share at the end of December to US$2.11 by the end of January 2016, according to the ruling. 

When Ontarian Vince Capelli bought the shares in October 2015, the shares had been trading over US$5 apiece. The parties agreed that the accountants, Calvetti Ferguson, P.C. will pay US$2 million, divided equally between the class, including plaintiff Vince Capelli, represented by Morganti & Co., and Nobilis, a U.S. healthcare company, valued at about $100 million on the New York Stock Exchange and represented by Alan Lenczner of Lenczner Slaght.   

In particular, the parties agreed that Calvetti Ferguson, P.C. shall be released in exchange for payment of US $1 million, with an additional US $1 million paid in trust to Lenczner Slaght, counsel to Nobilis. 

In the settlement, the class counsel requested a fee of 30 per cent on the US$1 million recovered, and a reimbursement of $158,568.27, mostly for payment of expert witnesses. The judge also recommended the fee be approved, citing the complexity of the case, the “risks undertaken” by the lawyers, the “degree of responsibility” assumed by the lawyers, as well as the skill of the counsel and the results of the case.


The Toronto Lawyers Association will be doing courthouse orientation tours for articling students on August 21, 23 and 28. Pre-registration is required, and the tours are for articling students who are TLA members. Further information is available at


The Ontario Court of Appeal has ruled that all litigation records with the Office of the Children’s Lawyer for a child client are not subject to freedom of information legislation, even if it is not material protected by solicitor-client privilege. Readers were asked if they agreed with the ruling. About 71 per cent said yes, they agreed with advocates for the rights of children within the justice system, who applauded the decision.

About 29 per cent said no, this ruling will harm transparency into the decision-making process by the Office of the Children’s Lawyer. 

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