Legal news and trends for Canadian in-house counsel and c-suite executives
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PRIDANVACECY THE This offer expires: August 31, 2009 Canada's Privacy Commissioner Jennifer Stoddart must balance the need to protect Canadians' privacy against the competing interests of business and law enforcement. S a s k at chewan r ev i ew • L o o k in' fo r a l i t t l e r e s pe c t • Onl ine medi at i on May 2009 together we have all the tools. TitlePLUS title insurance and you, TitlePLUS title insurance and you, together we have all the tools www.mckellar.com www.mckellar.com 1-800-265-8381 $3.55 • Vol. 20, No. 13 Covering Ontario's Legal Scene Cosgrove says 'life goes on' after the bench 'Shock and disappointment' BY ROBERT TODD Law Times F ormer Ontario Superior Court justice Paul Cosgrove has spo- ken out on the Canadian Ju- dicial Council's decision to call for his ouster, saying he was compelled to resign due to his pending retire- ment, despite finding aspects of the council's report "troublesome." Cosgrove tells Law Times in an interview that once the CJC issued its recommendation to the justice minister, "My options were pretty narrow." While he believes he could have appealed an earlier inquiry committee report at the Federal Court, he says a decision was un- likely before his mandatory retire- ment took hold in December. Cosgrove resigned earlier this month after the CJC issued a final re- port stating that his actions in a late- people in public office, and they were given little weight, according to the decision." Cosgrove's final criticism is the CJC's determination that the issue of public confidence was central to its decision. He suggests that it remains unclear what evidence is required to make such a determination. "So, all of those issues may have given rise for us to challenge," he says. "The problem with that is, of course I'm retired — manda- tory retirement in December of this year. And the process, for ex- ample, dealing with the constitu- tional issue, took three years." He says he did not want to Former Superior Court justice Paul Cosgrove tells Law Times that his pending mandatory retirement compelled him to resign from the bench rather than battle a call for his ouster. 1990s murder trial led to the conclusion that he "failed in the execution of the duties of his judi- cial office and that public confidence in his abil- ity to discharge those duties in future has been irrevocably lost." The decision made him only the second federal judge to meet such a fate. But the former judge says parts of the CJC's final report could have been challenged. The council did not use a set of 32 letters of support written by judges and retired judges, law- yers, and members of the public when coming to its decision, saying they were irrelevant, he notes. "Personally, I found that difficult because, for example, there were my supervising judges, the senior regional judges in Ottawa since I've been here for the last 24 years, all wrote very positive recommendations, and they also were aware of the trial," says Cosgrove. "So to say that these letters, the people had no knowledge of what was going on was not accurate." Cosgrove also suggests the council should have used the letters from community mem- bers when considering whether he had lost the public's confidence. "It would seem to me that it's logical to test what the public's demeanour is; you ask people who are knowledgeable in the public," he says. "And there were a number of letters from gamble and let the matter play out before Parliament, where an un- precedented joint resolution would have been required to finalize his ouster. Doing so may have proved cumbersome, suggests Cosgrove, with 20,000 pages of evidence likely put forth. The 74-year-old former judge, who will collect an annual pension of about $170,000, befor says that before the decision he was reason- ably confident that the council would not call his dismissal. decision for dismissal. Independent ndependent counsel Earl Cherniak, a partner at Lerners LLP, had previ-evi ously told the council such a stern punishment was not necessary. "It was shock and disappointment," Cos- grove says of his reaction to the final decision. He says he has been dealing with the fall- out by responding to media inquiries, and See Cosgrove, page 4 OTTAWA — The possible closure of McCarthy Tétrault LLP's high- profile office in the nation's capital is unrelated to dire economic cir- cumstances that have hit home for some Canadian law firms, a senior McCarthys partner says. Future uncertain for McCarthys' Ottawa office R e s o l u t i o n ma n BY TIM NAUMETZ For Law Times "Yeah, I guess, like any organi- zation we review our business plans on an ongoing basis," Boake tells Law Times when asked of the Ot- tawa office closure possibility. She adds the firm wants to meet the needs of its clients, and that each of its offices have a practice and focus which aligns with McCarthys' over- all strategy. "So it's in that context staff, remains undecided. "It's really just a question of the fact that we are in discussion with lawyers there as part of an overall strategic review," she tells Law Times. "These discussions have been going on for a while and are not related to the economy," she says. "I would call it a strategic review. Our firm really focuses on integrat- The financial crisis that has hit directly New York and London, being financial centres of the world, and the financial institutions based there, has not hit to the same degree in Canada, primarily because of the strength of the financial institutions in Canada. Consideration of the future of $7.00 McCarthys' Ottawa contingent is a "strategic review" based on the firm's national business plan, and the role played by all of its six loca- tions across Canada, says Barbara Boake, national leader, profession- als, at McCarthy Tétrault. that we're currently reviewing the Ottawa office, but no decision has been made to close it," she says. Boake would not divulge fur- ther details and said the fate of the office, along with the employ- ment of its seven partners, two associates, and 11 administrative ed practices; we have offices right across the country. We have a very diversified practice geographically and our overall strategy is to inte- grate those practices and develop client teams on a firm-wide basis." Boake, however, confirmed Mc- Carthys has taken "difficult staffing decisions" because of a drop in busi- ness due to the economy, letting go less than 20 of its 650 lawyers across the country. She would not give the specific number or other details. Gowling Lafleur Henderson LLP also confirmed to Law Times the firm released staff last week. But Gowlings chairman and CEO Scott Jolliffe said the shakeup did not involve partners or associ- ates. Jolliffe says the firm is shifting toward a "pod" model where law- yers and associates share a smaller number of secretaries, but he would not say how many were affected. The move not only economizes, but also creates a team atmosphere among secretaries that is useful for mentoring and sharing workloads. Sources in the legal community say McCarthy Tétrault's Ottawa re- view may be related to a management the economizes, eates See Ottawa, page 4, page 4 RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 BIG Tel: 416-863-9543 Fax: 416-863-9757 416-863-9543 416-863-9757 www.rainmakergroup.ca GANGSTA WHICH DIRECTION IS BEST FOR YOU? is the new frontier but the face-to-face Social media BD relationship is still an integral part of business development. q Send me 1 year of Canadian Lawyer for the regular price of $65.00 (Total with GST: $68.25) q Send me 1 year of Law Times for the regular price of $135.00 (Total with GST: $141.75) Name: ________________________________________________________________________________ Tel: ( q Payment enclosed Charge my: q Visa q Mastercard q American Express Card #: _________________________________________ Expiry Date: _ _ / _ _ (mm/yy) Signature (required): __________________________________________________ Date: ________________________ 240 Edward St. Aurora, ON. 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April 20, 2009 Inside This Issue 3 Get 2 years of Canadian Lawyer and Law Times (102 issues) packed with information for only $284.70! 35% $7.00 • L e g a l f e e s s u r v e y 2 0 0 9 • P i r a t e s s u n k Louis Pasquin is appealing the conviction that gives him the dubious honour of being the first lawyer in Canada guilty of gangsterism. June 2009 www.mckellar.com www.mckellar.com 1-800-265-8381 $3.55 • Vol. 20, No. 19 Inside This Issue 5 Oaths of Office 6 Social Justice 9 Focus On Internet/ E-commerce Law Quote of the week "It is also very interesting and exciting to think of sports properties re-energizing the southern Ontario market." Covering Ontario's Legal Scene Criminal lawyers boycott legal aid 'The system is broken' BY ROBERT TODD Law Times C riminal defence lawyers in Toronto say they are sick of propping up the province's legal aid system by accept- ing rates that barely cover their overhead costs, and will boycott homicide and guns-and-gangs cases until the tariff is boosted. Criminal Lawyers' As- president Frank sociation Addario says over 200 law- yers have committed to the indefinite boycott, was hatched through a reso- lution at the CLA's May ex- ecutive board meeting. "By taking these certificates and acting as if they were suf- ficient compensation for the complexity and seriousness of The current top legal aid rate of $98 per hour 'would cause most lawyers with overhead in a downtown office and with staff to giggle,' says Frank Addario. the cases we were drawing a curtain in front of the problem," says Addario. "The strong sentiment of the board was that we should no longer cover up for the gov- ernment, or paper over the problem. That we should reveal it for all to see." oblem. eal it for all to see. Addario says he submitted a business plan to Attorney General Chris Bentley in March, outlining a roadmap to a tariff hike that would be revenue neutral for complex cases with senior lawyers. When he received no response to that proposal, Addario sent a let- ter to Bentley in April outlining the CLA's ongoing concern about the tariff. The boycott was announced after Bentley failed to respond to that letter by the association's May 30 meet- ing, as Addario had requested. Addario says he was "overwhelmed by the in- tensity of the resolution [at the executive meeting] and in my conversations with lawyers since then. I think there's a pretty firm belief throughout the bar that the time has come to bring this issue out. And I'd emphasize that it's not as if anybody can make the system any worse than it is. The system is broken. It doesn't deliver on its primary which promise, which is equal access to justice for everyone." The CLA does not have a specific amount to which it wants the tariff increased before ending the boycott, says Addario. "It's a dynamic process and there are a number of consid- erations that both we and the government need to take into account, including the cur- rent economic situation. We are realistic," he says. The current top legal aid rate of $98 per hour "would cause most lawyers with overhead in a downtown of- fice and with staff to giggle," says Addario. He notes that lawyers who work on legal aid cases end up donating many hours due to Legal Aid Ontario's "very limited" yearly budget. early budget. The province gave judges of the Ontario Court of Justice 83 per cent in raises from 1997 to 2007, and Crown lawyers 57 per cent more compensation over that period. But since 1987 legal aid rates for lawyers acting on behalf of the poor have grown by only 15 per cent. Attorney General Chris Bentley says the province's 15 per cent in increases to the tariff over the past five years "doesn't make up for the 15 and a half years before of cuts and freezes." "I understand some of the frustrations," Army of 500 lawyers retained for auto deals BY TIM NAUMETZ For Law Times OTTAWA — An army of 500 law- yers was retained for the insolvency negotiations that led to the un- S h a r i n g k n owl e d g e i s p owe r www.mckellar.com www.mckellar.com 1-800-265-8381 $3.55 • Vol. 20, No. 19 Inside This Issue 5 Oaths of Office 6 Social Justice 9 Focus On Internet/ E-commerce Law Quote of the week "It is also very interesting and exciting to think of sports properties re-energizing the southern Ontario market." Covering Ontario's Legal Scene Criminal lawyers boycott legal aid 'The system is broken' BY ROBERT TODD Law Times propping up the province's legal aid system by accept- ing rates that barely cover their overhead costs, and will boycott homicide and guns-and-gangs cases until the tariff is boosted. Criminal Lawyers' As- C sociation president Frank Addario says over 200 law- yers have committed to the indefinite boycott, which was hatched through a reso- lution at the CLA's May ex- ecutive board meeting. "By taking these certificates and acting as if they were suf- ficient compensation for the complexity and seriousness of riminal defence lawyers in Toronto say they are sick of $7.00 promise, which is equal access to justice for everyone." The CLA does not have a specific amount to which it wants the tariff increased before ending the boycott, says Addario. "It's a dynamic process and there are a number of consid- erations that both we and the government need to take into account, including the cur- rent economic situation. We are realistic," he says. The current top legal aid rate of $98 per hour "would cause most lawyers with The current top legal aid rate of $98 per hour 'would cause most lawyers with owntown overhead in a downtown office and with staff to giggle,' says Frank Addario. ter to Bentley in April outlining the CLA's and the cases we were drawing a curtain in front of the problem," says Addario. "The strong sentiment of the board was that we should no longer cover up for the gov- ernment, or paper over the problem. That we should reveal it for all to see." Addario says he submitted a business plan to Attorney General Chris Bentley in March, outlining a roadmap to a tariff hike that would be revenue neutral for complex cases with senior lawyers. When he received no response to that proposal, Addario sent a let- ongoing concern about the tariff. The boycott was announced after Bentley failed to respond to that letter by the association's May 30 meet- ing, as Addario had requested. Addario says he was "overwhelmed by the in- tensity of the resolution [at the executive meeting] and in my conversations with lawyers since then. I think there's a pretty firm belief throughout the bar that the time has come to bring this issue out. And I'd emphasize that it's not as if anybody can make the system any worse than it is. The system is broken. It doesn't deliver on its primary overhead in a downtown of- fice and with staff to giggle," says Addario. He notes that lawyers who work on legal aid cases end up donating many hours due to Legal Aid Ontario's "very limited" yearly budget. The province gave judges of the Ontario Court of Justice 83 per cent in raises from 1997 to 2007, and Crown lawyers 57 per cent more compensation over that period. But since 1987 legal aid rates for lawyers acting on behalf of the poor have grown by only 15 per cent. Attorney General Chris Bentley says the province's 15 per cent in increases to the tariff over the past five years "doesn't make up for the 15 and a half years before of cuts and freezes." "I understand some of the frustrations," OTTAWA — An army of 500 law- yers was retained for the insolvency negotiations that led to the un- precedented government bailouts of General Motors and Chrysler, Ontario lawyers estimate. One of the lawyers who was involved with a Canadian aspect of the GM restructuring tells Law Times he knew he was watching history unfold from the inside. "There was a sense that we were all seeing something, and still are, seeing something that is historic," says Tony DeMarinis, a partner and co-chair of the restructuring and insolvency practice at Torys LLP. "It is extraordinary, it is excep- tional, it's extraordinary in every sense," he adds. Army of 500 lawyers retained for auto deals The BY TIM NAUMETZ For Law Times DeMarinis acted for General Motors Acceptance Corporation in a related action with GM Canada bondholders in Nova Scotia, and was also one of the lawyers retained by the government of Canada in the complex negotiations. He agrees with Justin Fogarty, a partner at Bennett Jones LLP and vice-chairman of the Interna- tional Bar Association committee on insolvency and restructuring, that up to 500 lawyers were likely retained by the governments, au- tomakers, bondholders, creditors, and unions involved in the talks. The number includes an esti- that's probably the right number," says DeMarinis. Both lawyers note that one of grinding wheels of No one and everyone is to blame for chaos and backlogs that are now endemic in the criminal justice system. mated 50 lawyers from Canada, primarily with major Toronto- based firms. "It's a hard number to estimate solvencies and restructuring, U.S. parent firms file for protec- tion under both Chapter 11 of the U.S. code and the Canadian bankruptcy protection legisla- tion, Fogarty and DeMarinis say. The reasons the automakers and my guess is probably nobody really knows, but my gut tells me sought protection only in the US. included an urgent need to reach agreements quickly and the fact justice the central features of the massive restructuring for GM and Chrysler was the fact that both parent com- panies filed for bankruptcy protec- tion only under the U.S. Bank- ruptcy Code — and did not file for protection under Canada's Com- panies' Creditors Arrangement Act for their Canadian subsidiaries. In nearly all cross-border in- RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 • Me n t o r i n g A fg h a n l awy e r s • Pe n s i o n p l a n s February 2009 To Divorce Judgments and Everything in Between From Marriage Contracts Visit www.divorcemate.com today! June 8, 2009 precedented government bailouts of General Motors and Chrysler, Ontario lawyers estimate. One of involved with a Canadian aspect of the GM restructuring tells Law Times he knew he was watching history unfold from the inside. "There was a sense that we were all seeing something, and still are, seeing something that is historic," says Tony DeMarinis, a partner and co-chair of the restructuring and insolvency practice at Torys LLP. "It is extraordinary, it is excep- tional, it's extraordinary in every sense," he adds. the lawyers who was DeMarinis acted for General Motors Acceptance Corporation in a related action with GM Canada bondholders in Nova Scotia, and was also one of the lawyers retained by the government of Canada in the complex negotiations. He agrees with Justin Fogarty, a partner at Bennett Jones LLP and vice-chairman of the Interna- tional Bar Association committee on insolvency and restructuring, that up to 500 lawyers were likely retained by the governments, au- tomakers, bondholders, creditors, and unions involved in the talks. The number includes an esti- mated 50 lawyers from Canada, primarily with major Toronto- based firms. "It's a hard number to estimate and my guess is probably nobody really knows, but my gut tells me that's probably the right number," says DeMarinis. Both lawyers note that one of the central features of the massive restructuring for GM and Chrysler was the fact that both parent com- panies filed for bankruptcy protec- tion only under the U.S. Bank- ruptcy Code — and did not file for protection under Canada's Com- panies' Creditors Arrangement Act for their Canadian subsidiaries. In nearly all cross-border in- solvencies and restructuring, U.S. parent firms file for protec- tion under both Chapter 11 of the U.S. code and the Canadian bankruptcy protection legisla- tion, Fogarty and DeMarinis say. The reasons the automakers sought protection only in the US. included an urgent need to reach agreements quickly and the fact that most major bondholders and major creditors were based in the United States. There was a danger as well that negotiating separate restruc- turing deals in Canada and the U.S. could lead to a cumbersome "patchwork" of agreements involv- ing subsidiaries around the world. "It's much more rapid and cost- effective," says Fogarty. Another lawyer who is accom- plished in the practice points to a major difference between Canadian and U.S. bankruptcy legislation. The U.S. code allows com- panies to "repudiate" collective agreements as they try to reach a balance between banks, creditors, and their employees. In Canada, court decisions based on the 1933 Companies' See DeMarinis, page 4 WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca FromMarriage Contracts To Divorce Judgments and Everything in Between Visit www.divorcemate.com today! June 8, 2009 See Government, page 4 See Government, page 4 that most major bondholders and major creditors were based in the United States. There was a danger as well that negotiating separate restruc- turing deals in Canada and the U.S. could lead to a cumbersome "patchwork" of agreements involv- ing subsidiaries around the world. "It's much more rapid and cost- effective," says Fogarty. Another lawyer who is accom- plished in the practice points to a major difference between Canadian and U.S. bankruptcy legislation. The U.S. code allows com- panies to "repudiate" collective agreements as they try to reach a balance between banks, creditors, and their employees. In Canada, court decisions based on the 1933 Companies' See DeMarinis, page 4 WHICH DIRECTION IS BEST FOR YOU? Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca MONEYISSUE THE