The Power of Perspectives

The Canadian Bar Association
Litigation

Expert shopping: Paying the price

By Alexander Gay September 21, 2017 21 September 2017

Expert shopping: Paying the price

 

Expert shopping is an all-too-common practice that undermines the legal system as a whole.  It can it result in egregious miscarriages of justice and undermines the confidence in the judicial system.

In 2015 the Supreme Court sounded warning bells on the misuse of expert evidence in its White Burgess ruling and opened the door for challenging witnesses at the voir dire stage for bias. But we have to consider more radical solutions to temper what can only be described as an unsavory practice by counsel.  The manner in which expert evidence is handled in the United Kingdom offers some clues that may assist us in tracing a path forward.      

The root of the problem is that we pay experts to provide testimony.  When counsel do not get full co-operation, or receive evidence that is not as favourable to their case as they would like, they can move on to the next expert and bury the first expert’s conclusions in his or her files.  Litigation privilege shields them from informing the court on the number of experts that have been consulted.  

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CBA influence

The impact assessment regime: A review of the review of the review

By Kim Covert September 21, 2017 21 September 2017

 

Having a clear, predictable federal regime for impact assessments is just the first step toward creating a process that will restore Canadians’ trust in the system and get resources to market. That protocol must also be sufficiently funded and resourced, say the CBA Aboriginal and Environmental, Energy and Resources Law Sections in response to an expert panel’s report released this summer.

The two CBA Sections were also among those who contributed to the report with a submission made to the expert panel during its consultation process in December 2016. 

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Big picture

Putting a price on carbon

By Yves Faguy September 18, 2017 18 September 2017

Putting a price on carbon

 

U.S. President Donald Trump has signalled his administration’s intention to pull out of the Paris Climate Accord .  Meanwhile, the number of carbon pricing initiatives implemented or scheduled has almost doubled over the past five years, according to Carbon Pricing Watch 2017. Here’s a look at current pricing regimes.

 

 

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Cover story

Her way: Profile of a transgender lawyer

By Beverley Spencer September 15, 2017 15 September 2017

Her way: Profile of a transgender lawyer

 

She wears a conservative navy blue suit and a pink-striped blouse. Her brown hair is lightly streaked and clipped up with a comb and her only jewellery is a simple silver necklace and a plain band on her right hand. Beige eyeshadow highlights her expressive brown eyes and she wears pale pink lipstick. Slim with delicate features, she has a pretty face.

It’s usually inappropriate to focus on the appearance of interview subjects unless they’re Hollywood actors or members of the Royal Family. But Marie Laure Leclercq used to pack her female identity into a suitcase that she carried in the trunk of her car so she could change out of her “suit of armour” when the pain of living a lie as a man named Philippe became overwhelming. Her ability today to live openly and proudly as a trans woman is a personal and professional victory. Her struggle to get to that point is the defining narrative of her life.

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In person

Getting to know Ranjan Agarwal

By CBA/ABC National September 15, 2017 15 September 2017

Getting to know Ranjan Agarwal

 

The winner of this year’s CBA Young Lawyers Pro Bono Award, Ranjan Agarwal has been described as a “thought leader” when it comes to a lawyer’s duty to advance the cause of access to justice. He is the past president of the South Asian Bar Association of Toronto and a partner at Bennett Jones LLP.

N: Who has had the biggest influence on you and why?

RA: My parents – they immigrated to Canada with almost nothing, all so their children could have a future where merit not birthright decided your destiny. Eric Hoaken – the best lawyer I know, and my mentor and champion, both as a lawyer and father. Justice Russell Juriansz – the first South Asian on the Ontario Court of Appeal, and lion of the human rights bar.

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Practice hub

Going in-house: Look before you leap

By Ann Macaulay September 15, 2017 15 September 2017

Going in-house: Look before you leap

 

THE DINERS

The General Counsel: Martha Binks, GC, Assistant Corporate Secretary and Director of Legal Services at Allstate Insurance Company of Canada, Markham, Ont., for the past 14 years.

The lawyer: We’ll call him Gilbert. A Toronto lawyer, he’s thinking of making the switch from private practitioner to corporate counsel and for now he’d like to keep that under wraps.

Is the grass truly greener on the other side?

Sitting down to lunch at Figo in Toronto’s Entertainment District, Martha Binks orders from the Italian-inspired menu then dives directly into the biggest issue for many exhausted private practitioners: work/life balance.

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Practice hub

Avoiding death by PowerPoint

By Mariane Gravelle September 15, 2017 15 September 2017

Avoiding death by PowerPoint

 

So you’ve been asked to participate in a conference. You’ll be part of a panel discussion alongside other colleagues, or share your expertise on a particular topic. It’s a great opportunity to connect with other lawyers and build your reputation within the legal profession – if your presentation is done well.

But how sharp are your presentation skills? If you don’t have the chance to present in front of large groups on a regular basis, you might have trouble holding people’s attention. Most of us know how to prepare speaking notes and PowerPoint slides, but communicating effectively on stage is another matter.

This can make us feel less confident and lead to nervousness, notes Mila Naimark, president of Clockwork Talk, a Toronto-based company that focuses on helping professionals become more influential presenters. She has the following tips to help presenters communicate their message more effectively while retaining the attention of their audience.

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The Court

The Court after McLachlin

By Doug Beazley September 15, 2017 15 September 2017

The Court after McLachlin

 

It is difficult to imagine a Supreme Court of Canada without Beverley McLachlin. For 17 years, she was the court’s rudder, steadying
it in choppy legal waters. So what happens after she’s gone?

Appointed to the court by Prime Minister Brian Mulroney as a puisne justice in 1989 and elevated to the top job 11 years later, Beverley McLachlin is the longest-serving chief justice in the court’s history. She led it through a period of consolidation and refinement of Charter law following the “dawn period” under Chief Justices Brian Dickson and Antonio Lamer.

The early years of Supreme Court interpretations of Charter law were action-packed, marked by many split decisions and an activist tone. McLachlin herself – appointed to the bench just a year before Justice Dickson’s retirement – described her approach to Charter law as one of “subtle interpretations” of the broad directions set during the Dickson and Lamer eras. She proved herself adept at stick-handling unanimous decisions on fraught subjects, from physician-assisted dying to maximum trial lengths – a talent that was nurtured during her long tenure on the court.

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Q&A

Mark Tamminga on the future of blockchain and legal services

By Yves Faguy September 15, 2017 15 September 2017

Mark Tamminga on the future of blockchain and legal services

 

In June, Gowling WLG announced it was signing on as a founding member of the Toronto-based Blockchain Research Institute, to study the emergence of the distributed ledger technology (DLT) behind Bitcoin and other crypto-currencies. CBA National caught up with Mark Tamminga, a partner and leader of Innovation Initiatives at the firm in Hamilton, to discuss the impact of blockchain on the legal services industry.

CBA National: Where are we in terms of the evolution of blockchain?

Mark Tamminga: It’s like 1994 in our understanding of the web, where it took a universal browser like Mosaic to get people to see it is a great tool that allows for this tremendous worldwide communication platform. Really there is no such thing as the blockchain. We have multiple blockchains, so just as there are many social networks with different purposes, there will not be one blockchain to rule them all. 

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Conduct becoming

Should referral fees be regulated or prohibited?

By Gavin & Brooke MacKenzie September 15, 2017 15 September 2017

Should referral fees be regulated or prohibited?

 

In 2002, the Law Society of Upper Canada amended its Rules of Professional Conduct to allow lawyers to pay referral fees to other lawyers. The rationale was that referral fees would encourage lawyers to refer work to lawyers better able to serve a client’s interests, reducing the likelihood that the lawyer would accept a retainer to act on a matter that may be beyond his or her ability. Ultimately, it would be a “win-win-win”: the referring lawyer would receive a payment, the referee lawyer would obtain a new client, and the client would be served by a lawyer well-qualified to act.

Conditions were put in place to prevent abuses. The referral had to be made because of the expertise of the referee lawyer. Referral fees could not be paid where the referral was made because of a conflict of interest. The referral fee had to be reasonable and could not increase the total fee charged to the client. The client had to be informed about the arrangement, and consent.

When the Federation of Law Societies developed its Model Code of Professional Conduct, it adopted the Ontario rule on referral fees. Today the Ontario rule is in place in all Canadian common law jurisdictions.

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Agents of Innovation

Online resolution can help shape justice reform

By Valentin Callipel September 15, 2017 15 September 2017

Online resolution can help shape justice reform

 

Can judges – or lawyers – be agents of change in our justice system?

Forgive me if the question is rhetorical, but in recent months we have heard countless alarming predictions that lawyers will be replaced with machines and courts with private companies – all more effective, more efficient and more attuned to the sway of economic actors devoted to rationality and efficiency.

Returning from these flights of fancy to the more practical, it appears that reform of our current justice system is concerned with determining whether to first increase the number of judges (so far only a mildly successful approach), divert some litigation outside the justice system or modernize proceedings using information and communication technology. What should we prioritize? Therein lies the very thorny question our different levels of government feel compelled to address in the aftermath of the R. v. Jordan ruling, which continues to unsettle public opinion on a daily basis.

This is where a close look at the evolution of online dispute resolution (ODR) can assist us and provide some serious food for thought.

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Closing argument

Cleaning the cobwebs – and some outdated presumptions – from the Criminal Code

By Omar Ha-Redeye September 15, 2017 15 September 2017

Cleaning the cobwebs – and some outdated presumptions – from the Criminal Code

 

The federal government is finally doing some housekeeping of the Criminal Code with Bill C-51. It may find some hidden cobwebs – and according to some, there may even be monsters under the bed.

The Criminal Code is a place where old, obsolete, or even unconstitutional laws languish in purgatory. Most governments have been content to simply ignore these outdated provisions, knowing that most would never actually be used. The result is a long, rambling and sometimes unnecessarily confusing statute.

Sometimes, the Code is sufficiently complicated to confuse even the judges. 

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