On Tuesday, April 14, the Supreme Court of Canada released its decision in R. v. Nur. The issue before the Court was the constitutionality of provisions of the Criminal Code which impose mandatory minimum sentences for certain gun crimes. The Society intervened in this appeal and took the position that the impugned provisions were unconstitutional under Section 7 of the Canadian Charter of Rights and Freedoms.
The majority of the Court held that the impugned provisions were indeed unconstitutional. While the majority tied its reasoning to Section 12 of the Charter (and therefore held it did not need to consider Section 7), the Court echoed the Society’s concerns that a provision imposing a mandatory minimum sentence creates a power imbalance in favour of the prosecutor and interferes with the right of an accused person to be tried by an independent, impartial tribunal.
Special thanks to Anil Kapoor and Lindsay Trevelyan of Kapoor Barristers, who represented the Society on this intervention.
A link to the reasons is here:
A link to the Society’s factum is here:
The Advocates’ Society is intervening at the Court of Appeal in the appeal from Madam Justice Wilson’s decision in Moore v. Getahun. The Society will make submissions on the proper scope of communications with testifying experts. In particular, the Society will submit that an advocate’s duties not only permit, but in many cases require, consultation with a testifying expert prior to the finalization of the expert’s report, to ensure that the expert’s evidence is independent and objective, relevant, reliable, comprehensible, and of assistance to the court. These submissions are largely based on the Society’s Principles Governing Communications with Testifying Experts released earlier this year.
Read the Society’s factum here. The hearing before the Court of Appeal will begin on Monday, September 22, 2014.
Read the parties’ and other interveners’ facta here:
Dr. Tajedin Getahun (Appellant)
Blake Moore (Respondent)
The Holland Group (Intervener)
Ontario Trial Lawyers Association (Intervener)
Canadian Defence Lawyers Association (Intervener)
Canadian Institute of Chartered Business Valuators (Intervener)
Criminal Lawyers’ Association (Intervener)
The Advocates’ Society has made submissions to the Civil Rules Committee proposing an expanded definition of “health practitioner” under the Courts of Justice Act. Read the Society’s submission letter here.
The Law Society of Upper Canada has requested submissions in connection with its consideration of the application of Trinity Western University (“TWU”) for accreditation of its proposed law school. TWU is a private Christian faith-based university in British Columbia and intends to offer a law school program commencing in September 2015. In December 2013, the Federation of Law Societies of Canada determined that the proposed law program met the national requirement, which establishes the knowledge and skills that all applicants for entry to the bar admission programs of the law societies in the Canadian common law jurisdictions must possess. Now it falls to each provincial law society to decide whether to accredit TWU’s proposed law school and licence its graduates to practice law. Attendance at an accredited law school is a prerequisite to licensure to practice law in Ontario.
The issue of concern to the Law Society is the “Community Covenant Agreement” (the “Covenant”) which all TWU students, faculty and staff are required to sign. It requires adherence to a code of conduct which, among other things, requires abstention from “sexual intimacy that violates the sacredness of marriage between a man and a woman”. The Covenant discriminates against members of the LGBTQ community, unmarried persons and members of certain religious groups. If accreditation were granted, the effect of the Covenant would be to exclude such persons from a portion of the limited number of places available at accredited law schools for those persons who wish to qualify to practice law in Ontario.
The Advocates’ Society established a task force to consider whether TAS should make a submission to the Law Society and, if so, what that submission ought to be. The recommendation of the task force, approved by TAS’ Board of Directors, is that TAS ask that the Law Society not approve the application for accreditation by TWU. Amongst other things, TAS’ submission notes that:
(1) the legislation governing the Law Society requires that in carrying out its duties, the Law Society “advance the cause of justice and the rule of law” and “protect the public interest” and
(2) the Law Society’s Rules of Professional Conduct require members to “respect the dignity and worth of all persons and treat all persons equally without discrimination”.
As TWU’s proposed law school discriminates in the granting of admission on prohibited grounds, by virtue of the Covenant, TAS believes it would be inappropriate for the Law Society to grant TWU’s application for accreditation.
The full submission of The Advocates’ Society to the Law Society is available by clicking here.
The Advocates’ Society has been granted leave to intervene in the Groia matter and has now filed its factum with the Appeal Panel at the Law Society of Upper Canada. The Society sought leave to intervene in the appeal because the reasons for decision of the Hearing Panel which convicted Mr. Groia of professional misconduct raise important issues regarding professionalism and civility and regarding the discipline process.
The Law Society is prosecuting Mr. Groia for professional misconduct in connection with his allegedly uncivil and unprofessional conduct as trial counsel representing his client in the defence of a prosecution brought by the Ontario Securities Commission. Mr. Groia’s conduct was the subject of unfavourable comment from two judges made in the course of disposing of an unsuccessful application by the Ontario Securities Commission to halt the trial due to what it saw as the trial judge’s failure to deal with Mr. Groia’s alleged misconduct. The comments of those judges were relied upon by the Hearing Panel in convicting Mr. Groia.
The Society’s intervention was launched pursuant to a resolution of the Board of Directors of the Society. The Board adopted the recommendation to intervene made by a Task Force established by the Board to consider the decision of the Hearing Panel which convicted Mr. Groia and to make recommendations regarding whether the Society should apply to intervene in the appeal and on what issues. The Task Force consisted of both Board members and other non-Board members of the Society. Its composition reflected the diversity of the Society’s membership in terms of practice areas, geographical regions and views on whether the prosecution of Mr. Groia by the Law Society was appropriate.
The Task Force did not recommend that the Society take a position on the ultimate disposition of the proceedings against Mr. Groia. The Task Force did recommend the Society intervene to make the submission that counsel are required to be civil, but that only egregious or continuous uncivil conduct can constitute professional misconduct. The Task Force also identified a concern with respect to the ruling of the Hearing Panel that it would be an abuse of process to permit Mr. Groia to relitigate the findings of unprofessional and uncivil conduct made by the two judges in the course of disposing of the application by the Ontario Securities Commission. In particular, there was concern that because Mr. Groia was not a party to that application in his personal capacity, and because his primary duty had been to advance his client’s interests rather than defend his own conduct, it would be unfair to preclude Mr. Groia from relitigating the issue of his conduct in the discipline proceedings.
The Task Force was also concerned with the Hearing Panel’s conclusion that counsel in a large document case have a duty to cooperate which extends to consenting to the admission of documents into evidence.
The Board accepted the recommendation of the Task Force to intervene in the appeal and, in its factum, the Society makes the following submissions to the Appeal Panel:
(i) TAS’s Principles of Civility and Professionalism for Advocates represent an informed view of what constitutes civil or uncivil conduct and are an important tool against which conduct can be measured. The importance of civility in the courtroom cannot and does not diminish the essential and time-honoured duty of the litigator to be a zealous advocate. Uncivil conduct should only be subject to disciplinary action where it is egregious or continuous and serves to threaten or undermine the integrity of the administration of justice.
(ii) Except in rare circumstances, it is not an abuse of process in a professional misconduct hearing for a lawyer to defend his or her behaviour in a prior proceeding, even where the adjudicator in that prior proceeding made comments about the lawyer’s conduct.
(iii) It is not improper for an advocate to forcefully advance a submission of law or fact in good faith, no matter how tenuous, where such submission is made in an appropriately civil manner. Nor is it improper to insist on compliance with the rules of evidence.
The hearing of the appeal is scheduled for September 9 and 10 at Osgoode Hall in Toronto. Here are links to the Society’s Factum, the Notice of Application commencing the discipline proceedings against Mr. Groia, the Reasons for Decision of the Hearing Panel, the Factum of Mr. Groia on the Appeal, the Factum of the Law Society on the Appeal and the Factum of the Intervenor, the Canadian Civil Liberties Association.
The Ministry of the Attorney General recently invited The Advocates’ Society to provide input on Digital Recording Devices (DRDs) in courtrooms, which would allow counsel to obtain same day recordings of courtroom proceedings. DRDs have been in certain jurisdictions for some time, and have now been installed in all courtrooms across Ontario. It has come to the Society’s attention that a new policy of the Ontario and Superior Courts of Justice requiring lawyers to sign an undertaking to access the digital recordings was created and went into effect on April 15, 2013. The policies and undertaking were not provided to the implementation committee for feedback.
The policies and undertakings are available at these links:
When the policies and undertaking were brought to the Society’s attention, our representatives saw several issues of concern, and were also concerned by reports that the microphones used to record court proceedings are capturing private communications between counsel and co-counsel, court staff and even clients. This obviously raised serious concerns, and the Society wrote to the Courts to express them. Click here to read the Society’s letter and click here to read the Court's response.
The letter from the Society is attached for our members’ information, along with a letter from the Director of Court Administration in response. We expect to have a response respecting the legal implications of the undertaking soon, and will continue to keep our members up to date.
Our thanks to Rocco DiPucchio, Robin Linley and Joseph Di Luca, who represent TAS on the implementation committee.
The Federal Court has completed its global review of the Federal Court Rules(click here to read the report), and TAS has provided submissions on the report. Thank you to our task force chair, Laura B. Stewart, and the rest of our task force: Arthur B. Renaud, Barbara Jackman, David Yazbeck, Nancy K. Brooks and Peter K. Doody.
Following on the deferral of the vote on the Law Society's Articling Task Force Report (Pathways to the Profession: A Roadmap for the Reform of Lawyer Licensing in Ontario) from October 25 to November 22, the Law Society of Upper Canada agreed to receive further submissions on the Report by early this week. The Society forwarded a compromise recommendation to the Law Society, in order to see whether the differences between the majority and minority reports could be bridged in a way consistent with the principles that our Task Force recommended in March of 2012.
The Rules Committee is considering making some changes to Rule 48 of the Rules of Civil Procedure and approached the Society for input. Thanks to the task force who created these submissions on our behalf: André Michael, Andrew Spurgeon, Dan Newton, Heather Williams, Laura Stewart, Paul Steep, Susan Gunter, and Lucille Shaw.
Click here to read the submission.
The Ministry of the Attorney General (MAG) is conducting a review of the Law Society’s regulation of paralegals, as required by the Law Society Act. The Advocates’ Society made submissions to MAG that largely mirror those made to the Law Society itself during its own mandated review of paralegal regulation. TAS submitted that paralegals should be subject to assessment of competence in substantive law and that those paralegals who engage in advocacy work under the supervision of a lawyer should be exempted from the licensing requirement. Our thanks to Gord Capern, who took the lead on these submissions to MAG, and to the original task force who worked on the submissions to the Law Society: Adrian Lang, Anil Kapoor, Martha McCarthy, and Norm Emblem
Click here to read the submission.
The Standing Committee on Finance and Economic Affairs of the Ontario Legislature has begun a study on fraud in the automobile insurance industry. Andrew Murray appeared before the Committee on the Society’s behalf and we also provided written submissions to the Committee. The Committee has completed hearings on the issue but has not yet begun drafting a report. We are in touch with the clerk of the committee and monitor the website to track next steps. Thank you to our task force: Andrew Murray, Rick Shaheen, Dan Dooley, Stephen Firestone, Philippa Samworth and Roger Chown.
Study of the Automobile Insurance Industry Submission.
The Task Force on Auto Insurance Fraud reports to the Minister of Finance and involves the Financial Services Commission of Ontario (FSCO) and the Ministries of Finance, Community Safety and Correctional Services, and Attorney General. Their recent Status Report raises concerns that the Unfair or Deceptive Acts or Practices regulations under the Insurance Act could apply more broadly to include lawyers, adding another layer of regulation over lawyers. Philippa Samworth made oral submissions on August 24, 2012 and the Society also submitted written submissions with the assistance of Andrew Murray, Rick Shaheen, Dan Dooley, Stephen Firestone and Roger Chown. The Society was asked to provide supplemental submissions, which were drafted by the same task force.
Submissions to the Ontario Automobile Anti-Fraud Task Force
At its May Convocation, the Law Society proposed a number of changes to the Rules of Professional Conduct intended to bring Ontario’s Rules in line with the Federation of Law Societies’ Model Code. A task force headed by Peter K. Doody and including Adrian Lang, Anil Kapoor, Heather Hansen, Helen Daley, Laura Stewart, Martha McCarthy, Richard Swan and Robert MacKinnon worked diligently over the summer to review and respond to the proposed changes.
Submissions on the Rules of Professional Conduct.
The Advocates’ Society made submissions to Legal Aid Ontario on May 25, opposing the proposed new guidelines for exercising its discretion to approve payments in excess of the tariff.
Click here to read the submission.
The Law Commission of Ontario recently asked for input on its Interim Report on Family Law. Many thanks are due to our task force for putting together a well-researched response: Martha McCarthy (Chair), Heather Hansen, Katherine Shadbolt, Oren Weingberg, Gerri Wong, Hilary Linton, Gemma Smyth and Sam McDonald.
Click here to read the LCO Interim Report on Family Law.
Click here to read The Advocates’ Society’s submissions.
The Advocates’ Society has expressed its concern with respect to Bill 34, the Security for Courts, Electricity Generating Facilities, and Nuclear Facilities Act, 2012 to the Attorney General of Ontario. The extraordinary search powers granted by the Act would allow designated security agents to search, without warrant, any person entering a courthouse, their vehicle and any other property in the custody or care of the person. The Society has proposed that the Bill be amended to enshrine the to enshrine the currently accepted practice of exempting lawyers from the search procedure upon presentation of appropriate identity cards in the legislation.
Click here to read the letter
The Advocates' Society wrote to The Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada, and The Honourable John Gerretsen, Attorney General of Ontario, in support of the expansion of the Unified Family Court ("UFC") system throughout Ontario. Thank you to Martha McCarthy who took the pen for this letter.
Click here to read the letter
The Advocates’ Society recently provided submissions to the Law Society on their Articling Consultation Report – an issue that is crucial to our profession. Bill Sasso chaired our task force and put an incredible amount of work into our submissions. We also thank the rest of our task force: Tracey Tremayne-Lloyd, Helen Daley, Sonia Bjorkquist, James Bennett, Peter Doody, Shawn Graham and Alan Mark.
Read the LSUC’s consultation report
Read The Advocates’ Society’s covering letter
Read The Advocates’ Society’s submissions
The Law Society of Upper Canada was required to review the manner in which licensed paralegals have been regulated and the effect of the regulation on the public and requested input from stakeholders. The Society’s task force consisting of Adrian Lang, Anil Kapoor, Martha McCarthy, and Norm Emblem drafted submissions.
Click here to read the letter.
TAS added its voice to the chorus of opposition to Bill C-10 in this letter addressed to the Senate’s Legal and Constitutional Affairs Committee. Bill C-10 passed on March 12. Thank you to the Task Force: Anil Kapoor, Adrian Lang, Ryan Teschner, Scott Fenton, Kent Thomson, Brennagh Smith, Adam Delva and Eva Marszewski.
Click here to read the letter.
The Federal Court has asked for submissions on changes it is proposing to bring their rules closer to the rules of procedure in other courts. Laura Stewart led a task force comprised of Art Renaud, Barbara Jackman, David Yazbeck, Nancy Brooks and Peter Doody in developing these submissions.
The CBA requested comments on the draft protocol. Past President Sandra Forbes chaired the task force consisting of Peter Lukasiewicz, Peter Griffin, Michael Eizenga, Paul Steep, Adrian Lang, and William Sasso. Thank you all for considering and commenting on the draft protocol in a tight time frame.
It appears from this Law Times Editorial that the CBA noted the concerns that TAS expressed regarding the ability of judges to delegate their management powers to a judge in another jurisdiction absent legislative reform.
Thank you to Laura Stewart and her associate Elad Gafni who led the way in drafting The Advocates' Society's comments on changes to the Standards of Practices for Actuarial Evidence, proposed by the Actuarial Standards Board.
Thank you to our Task Force: William V Sasso (Chair), Norm Boxall, Phil Downes, Doug Hunt, Sean Dewart, Norm Emblem and Cheryl Goldhart.
TAS made a submission to FSCO on their Expert's Report on the definition of Catastrophic Impairment. It was a tough issue and an extremely short turn-around time, but our task force did an amazing job coming to a consensus.
Thank you to our Philippa Samworth (chair of the task force), Andrew Murray, Rick Shaheen, Roger Chown, Stephen E. Firestone and Dan Dooley for an amazing job!
Our task force was spearheaded by Martha McCarthy. Assisting Martha were Heather Hansen, Judith Nicoll, Katherine Shadbolt, Mel Norton (Actuary) and David Wolgelerenter (Actuary).
A subcommittee of the Civil Rules Committee recently requested The Advocates' Society to comment on a review of rules 53.09 and 53.10 (as contemplated by s. 66(4) of the Courts of Justice Act, which requires a quadrennial review). The rule concerns the interest rate to be used when discounting future earnings.
Thank you to the task force: André Michael, Rick Shaheen, Laura Stuart, Andrew Murray and Dan Dooley.
The Advocates' Society was pleased to forward a submission to the The Law Society on the ethical and procedural issues relating to the “unbundling” of legal services, otherwise known as limited legal services or limited legal representation - that is, legal services for part, but not all, of a client’s legal matter by agreement with the client. TAS delivered a submission to the Professional Regulation Committee in January of 2011.
The task force, comprised of Dan Dooley, Rick Shaheen, Martha McCarthy, Michelle Smith and Margaret Bojanowska did an outstanding job researching and drafting the TAS submission.
SLAPP stands for Strategic Litigation Against Public Participation. The Ontario government introduced draft legislation aimed at putting a stop to litigation intended to limit public participation and / or protest, and requested comments. Peter Lukasiewicz, Paul Le Vay, Dan Dooley and Sylvia Samuel drafted a submission on behalf of TAS respecting Anti-SLAPP legislation in November, 2010. When the Ministry of the Attorney General released its report and invited further submissions, the task force put together a response from TAS and submitted it in February, 2011.
In July of 2010, a task force including Rick Shaheen, Peter Lukasiewicz, André Michael, William Sasso, Laura Cooper and Scott Kugler drafted a response to the Law Commission of Ontario’s request for submissions on proposed changes to the OBCA. TAS’s response included both the plaintiff and defence perspectives.
Philippa Samworth, Laura Stewart, Roger Chown and Sylvia Corthorn comprised the task force that drafted TAS's submission to the Law Commission of Ontario on July 12, 2010 regarding questions raised by the Court of Appeal in Adams v. Cook. TAS did not support any change to the Rules that would result in orders allowing recording to be routinely made, as the change would increase cost and complexity of litigation in return for limited or no benefit.
Dan Dooley, Don Rennie (as he then was), Sylvia Corthorn and Sonia Bjorkquist developed The Advocates' Society's initial response to the Civil Rules Committee on this issue, recommending that if an increase in the costs guideline figures is warranted, the increase be approximately 10%. On December 9, 2010, the working group (with the exception of the Honourable Don Rennie, who had since been appointed to the Federal Court) drafted a follow up explanation of our recommendation in response to a request from the CRC.
This Bill would require all Supreme Court Justices to be fully bilingual. Adrian Lang, Don Rennie (as he then was) and Michael Emery put together a letter from TAS to each Senator dated August 19, 2010, outlining TAS’s reasons for opposing to the Bill. The group welcomed Sylvia Corthorn when the Honourable Don Rennie was elevated to the Bench, and continued to monitor the Bill’s progress. The TAS letter was quoted by various senators during debate. The bill died when the April 2011 election was called.
Selected Submissions from Earlier Terms
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