Canadian Lawyer

September 2019

The most widely read magazine for Canadian lawyers

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UPFRONT 6 ONTARIO UPDATE NEWS BRIEFS Statement of Principles will be debated again in September, LSO says A debate about a contested diversity initiative at the Law Society of Ontario will take place at 9 a.m. on Sept. 11, the LSO confirmed on July 17. The law society was set this summer to decide the fate of the statement of principles requirement — a rule that lawyers must write a document agreeing to promote diversity and inclusion. Benchers discussed the statement of principles for many hours in June, but they did not end up with a decisive vote to change anything. Citing blog post, judge says lawyer withheld key case law A judge said a lawyer — whose firm blogged about a relevant piece of case law — failed to tell the court about the important ruling. The judge wrote that while his decision was under reserve, he came across a relevant estates litigation blog written by the same law firm with which the respondents' counsel practises. "I have also reached the very troubling conclusion that counsel for the respondents purposefully did not bring the decision . . . to the attention of the court." An appeal is planned. Lawyer's negligence case sheds light on rules for expert witnesses A decision by the Ontario Superior Court of Justice clarified how much defendants need to disclose about expert's reports before trial, lawyers say. The case alleges a lawyer breached the standard of care during past litigation by recommending an improvident settlement after the plaintiff Shaun Edwards was injured in a car accident. An expert report addressed the standard of care issues, but Edwards' new lawyers requested more information on the report. A lower court said that the defendant should produce the extra documents about the report, but the appeal court disagreed. Law Society Tribunal allows appeal in longstanding mortgage fraud case A recent appeal decision before the Law Society Tribunal shows the difficulty of using similar fact evidence and the importance of expert witnesses, says the lawyer who worked on the case, Dickinson Wright LLP partner Brian Radnoff. "[The decision] emphasizes that it's important for the panels to consider expert evidence, particularly when you're dealing with transactions that happened a long time ago. Knowledge of real estate fraud has gotten a lot more sophisticated," Radnoff said. Surge in Canadian lawyers working from home About 74 per cent of Canadian lawyers surveyed said that more colleagues have worked remotely in the past year. The survey, conducted by legal staffing and consulting firm Robert Half Legal, focused on 150 full-time Canadian lawyers at firms with 20 or more workers or in-house at companies with 1,000 or more workers. Thirty-one per cent of respondents said significantly more lawyers are working remotely, while 43 per cent said somewhat more lawyers at their firms were working remotely. Almost no one said the number of remote workers had decreased. Immunity change raises flags Crown Liability and Proceedings Act could impact class actions and create 'insurmountable' access to justice issues ONTARIO'S NEW rules for Crown immunity could present "a barrier to access to justice" for class action lawsuits, according to the Law Commission of Ontario. But the Ontario government says the rules defend taxpayers from "deep-pocketed lawyers." The LCO, which does independent research on legal reform, addressed its concerns about the Crown Liability and Proceedings Act, 2019 in a report, "Class Actions: Objectives, Experiences and Reforms." The LCO had nearly finished its report on class action reform when the new act received royal assent in May, but the changes were significant enough they needed to be flagged, says LCO executive director Nye Thomas. "Simply stated, the Crown Liability and Proceedings Act, 2019 could prevent some or potentially all negligence claims against the Province of Ontario, including some or all potential class actions. This situation could create significant if not insurmountable barriers to justice, to judicial economy and to behaviour modification in class actions against the province," said the report. Jenessa Crognali, press secretary for Minister Doug Downey, says the act "does not present any insurmountable access to justice barriers" in class action law.

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