NEWSLETTER - the Middlesex Law Association

NEWSLETTER
June 2015
President’s Report
The Middlesex Law Association is a
member of the County and District’s Law
President’s Association (CDLPA), which
meets semi-annually in various parts
of the province. Dagmara Wozniak (VP)
and I were fortunate to travel to Thunder
Bay for the spring Plenary. We had the
opportunity to hear from various law
associations, as well as speakers from
the Law Society, Law Pro, and other
stakeholders. There are several takeaways
that we will begin reviewing and
implementing into our own association,
including reviewing court security
procedures, to ensure all members of the
bar are aware of the security protocols
for events such as lock-downs and other
urgent events at the Court House.
programming in various areas of law, and
an excellent relationship with the Bench.
We will continue to engage CDLPA and the
Law Society on issues of importance to our
members. We encourage our members to
contact any one of our Trustees with any
concerns or issues facing your practice.
After hearing the various issues facing
other associations in Ontario, we are
fortunate to have many resources within
the Middlesex Law Association, including
our Practice Resource Centre, our own
CPD program coordinator, excellent local
In this Issue:
Library News
Report on CPD Programs
Bencher’s Report
Your Say
MLA Golf Tournament
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80 Dundas Street, London, ON N6A 6A1
www.middlaw.on.ca 519.679.7046
-- Lindsay Kirk
Library News
CALL Conference 2015
The Canadian Association
of Law Libraries (CALL)
conference was held in
Moncton, New Brunswick
this year. It featured a
wide range of sessions
that dealt with substantive
law, legal issues and law
library developments. The
conference attendees came
from across Canada and
from academic, government,
courthouse and law firm
libraries. There were
representatives from the
US, Australia and England,
to name a few. Members of
the local bar were also in
attendance for one of the
keynote sessions because
it was, for the first time,
approved for a CPD credit.
If you have any issues
or concerns regarding
the Middlesex court
facilities, operations,
judiciary, etc., let
them be known to
Tim Price, the current
MLA Bench & Bar
representative.
Contact Tim Price at
519-672-5415, or by
email at
[email protected]
Newsletter
Deadline
The MLA Newsletter
welcomes your comments,
articles and advertisements
The submission deadline
for each issue of the MLA
Newsletter is usually the
22nd of each month (or
the Friday before if it lands
on a weekend) for the
following month’s edition.
Please direct all replies to
Newsletter editor Hermina
Nuric at 519-645-7330
[email protected]
This year's conference
emphasized the connection
between lawyers and
librarians more than
previous conferences
had done. It provided an
invigorating combination
of educational sessions,
business meetings, vendor
demonstrations, and, of
course, social events. Many
speakers were practicing
lawyers themselves, in
addition to law librarians and
law professors.
Keynote Session: The Future
of Legal Services in Canada
The first keynote speaker
was Fred Headon, counsel
for Air Canada and Chair
of the CBA’s Legal Futures
Initiative.
The CBA team published the
Future of Legal Services in
Canada: Trends and Issues
report. Mr. Headon is an
engaging speaker with a
passion for the changes
the report envisions for the
practice of law in Canada
and the challenges inherent
in those changes. He
argued that lawyers need
to play better with others
in the sand box. Lawyers,
like librarians, have to find
new ways of doing things.
We admittedly have not
examined all of the issues
involved with the proposed
Alternative Business
Structures, but it was clear
from Mr. Headon’s talk that
the legal profession is due
for some modifications to the
way it delivers its services.
Law firms have been allowed
to advertise their services
only over the past 25 years.
The profession still needs to
adapt to the changing needs
of the people it serves. In
Mr. Headon’s view, the legal
Continue on Page 3
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80 Dundas Street, London, ON N6A 6A1
June 2015
Library News
Continued from page 2
profession has, to a large
extent, been operating as
it had in the feudal times.
It has failed to adapt to the
changes in the manner that
other profession have done.
For example, one used to
go to a grocer, who would
measure your purchases and
hand you the package over
the counter. Now, you can
go to a supermarket, grab
the items from a shelf, and
proceed to self-checkout.
When you go to a dentist,
the dentist does not clean
your teeth. Instead, a
qualified, experienced, and
cheaper dental hygienist
performs this task, and
the insurance company
accordingly caps the
reimbursement. The legal
profession needs to embrace
more modern practices,
terminology and technology.
Members of the public are
turning to friends and family,
business contacts and the
internet for legal advice.
They are not asking lawyers
for help because lawyers are
perceived as too expensive,
and clients are not clear
on when the billing will
stop. Mr. Headon suggested
that law firms could have
a triage-type arrangement
where the clients are initially
processed by a non-lawyer.
Modern terminology could
also make the process easier
for the clients. Mr. Headon
observed that, when you
use an income tax filing
program, it does not ask
you if you have any 435.1
deductions. It rather asks
you if you have children
and if they are involved in
sports or music programs
for which you could claim a
deduction. Technology can
also be employed to make
the practice of law more
efficient and, ultimately, less
expensive for the individual
client. It could also allow
the lawyer to take on more
clients because their time
would not being wasted
on cumbersome tasks.
However, for both lawyers
and librarians, new technical
advances such as CanLII
do not replace the need for
the value added services
provided by humans.
Lawyers and librarians help
their clients, and lawyers can
find their way through the
resources, saving time and
saving money.
Continue on Page 4
www.middlaw.on.ca 519.679.7046
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Library News
Continued from page 3
Mr. Headon pointed out that
a pilot would not decide
to fly an airplane in the
more costly and difficult
manual manner rather
than through an auto-pilot
because airplane passengers
would not be prepared to
pay more for their tickets
where a cheaper and more
efficient method of flying
was available. Canadians
similarly deserve and expect
a vibrant legal profession.
There is a need to repair the
disconnect between the legal
profession and the public.
Mr. Headon’s keynote
address raised a lot of
interesting issues and
highlighted the benefits
of a multi-disciplinary
legal practice. We have
downloaded the forty
page report but will need
some time to review it.
Fred Headon has missed
his calling as a morning
talk-show host or standup comedian. It is always
a good sign when we have
no desire to play on our
iPad during a session. We
would encourage anyone
who has the opportunity to
attend one of Mr. Headon’s
presentations on the report
to do so.
Educational Sessions
The general recurring
theme of this conference
was the need to work
with the current available
technologies in lawyers’
practices and law library
operations. From vendor
demonstrations aimed at
law firms and their libraries,
to the keynote address
described above, the
emphasis was on developing
the technical skills to serve
our clients effectively and
efficiently.
Sunday’s seven-minute
“Lightning Talks” provided
Continue on Page 5
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80 Dundas Street, London, ON N6A 6A1
June 2015
Library News
Continued from page 4
quick tips on a number of
practical issues: producing
in-house annotated acts
in a law firm library;
scholarships and bursaries
available from CALL; library
research training in the
SCC library; blogging in
the Saskatchewan Law
Society library; collection
digitization at the British
Columbia Attorney General
library; and developing an
Internet technology course
for the practice of law at the
Cornell Law School. Other
more in-depth sessions over
the following three days
included: evaluating law
library services, effective
social media solutions for
library promotion, the future
of legal publishing, and
building a user-centered
library.
One of the more academic,
but somewhat entertaining,
sessions was called, “A new
rule of three, or triangulating
Canadian Legal Literature”,
by Paul McKenna. Mr.
McKenna is an Adjunct
Professor of Legal Literature
& Librarianship within the
Faculty of Graduate Studies
at Dalhousie University in
the School of Information
Management. He designed
his strategy as a mnemonic
approach for understanding
the fundamentals of
Canadian legal literature.
He frames everything
according to the rule of
three in order to provide
the structure for his further
teaching on the Canadian
systems of legislation and
government. There are timehonoured rules of three
in many various realms,
such as music, theatre
and medicine – jazz trios,
The Three Gentlemen of
Verona, or the “Rule of
Three” for statistical analysis
in medical research. This
provides the background for
Continue on Page 8
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80 Dundas Street, London, ON N6A 6A1
June 2015
www.middlaw.on.ca 519.679.7046
7
Library News
Continued from page 5
understanding the “three’s”
that exist in his course
subject matter – government
structure (municipal,
provincial, federal), legal
sources (legislation, case
law, secondary sources), and
legislation (bills, statutes,
regulations.) Although it
was somewhat esoteric,
the audience enjoyed Mr.
McKenna’s friendly and
almost folksy approach to
the topic.
Not to be forgotten are
the business meetings and
social events. We had an
opportunity for a separate
meeting with approximately
35 staff members from
courthouse libraries across
Ontario in order to discuss
various plans for continued
co-operation amongst our
libraries and to share new
ideas for improving services
to our members.
The opening reception of
the conference was held at
the Resurgo Place, home of
the Moncton Museum and
Transportation Discovery
Centre. The displays
were interesting, but the
conversation and the
oyster bar were the main
attractions of the evening.
The closing reception was
held at the Parlee Beach
Restaurant in the nearby
Shediac. It had apparently
been opened early this
season specifically for this
event. The plans for the
evening were promising
– an east coast kitchen
party, complete with a fiddle
player, spoons to play for
the whole group, all the
lobster you could eat, and a
beautiful view of the sunset
on the beach. Even the
unexpected and unfortunate
power outage could not
ruin the fun. The restaurant
managed to serve warm
food and cold drinks well
into the evening. Although
there was no functioning
sound system, imagine 145
librarians spooning in the
dark!
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Library News
Continued from page 8
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Martin’s Related Criminal
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MacDonald. Handling a
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n/a. Art and science of
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Olthius, Kleer, Townshend.
Aboriginal law handbook
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Holmstead and Gale.
Ontario Judicature Act &
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Pozner, Larry and Roger
Dodd. Cross-examination:
science and techniques –
2nd ed.
Johnston, David. Canadian
securities regulation –3rd
ed. (new)
Sopinka, John. The law of
evidence in Canada – 4th
ed. (new)
LSUC. Annotated
documents for a power of
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VanDuzer, Anthony.
Law of partnerships and
corporations -3rd ed.
LSUC. Twelve-minute civil
litigator 2012.
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9
Report on Past Programs
The Tenth Annual
Straight from the Bench
Conference
update, the duty of good
faith, and a professionalism /
legal proceedings update.
The Middlesex Law
Association held its Tenth
Annual Straight from the
Bench Conference on
Wednesday, May 27, 2015.
One of the highlights of
this year’s conference was
hearing Eugene Meehan,
Q.C. speak on seeking and
obtaining leave to appeal
to the Supreme Court of
Canada, as well as his
presentation on the tactical
use of civility.
This year’s Conference
welcomed 130 lawyers,
judges and sponsors who
covered a variety of topics,
including two excellent panel
discussions on Rule 49 offers
and damages. Additional
topics included: expert
witness update, conflict
of laws update, tort law
10
We were delighted to once
again welcome a judge
from Ontario’s Court of
Appeal. We enjoyed Chief
Justice George Strathy’s
presentation entitled
“Straight from the Chief”,
which discussed the idea of
cognitive clarity and the Rule
of 3, amongst other things.
Regional Senior Justice
Heeney delivered an
enthusiastic State of the
Region address, which
was informative and
comprehensive.
Thank you to the Honourable
Madam Justice Lynne Leitch
for acting as our judicial
chair for this conference
for the tenth year in a
80 Dundas Street, London, ON N6A 6A1
Continue on Page 11
June 2015
Report on Past Programs
and organizing the panels.
Continued from page 10
row. Clearly, her Honour
is committed to delivering
high quality and practical
litigation conferences in
southwestern Ontario.
Thank you to the co-chairs
of the event, Ms. Anne Marie
Frauts of Frauts Dobbie,
Ms. Dara Lambe of Lerners
LLP, and Ms. Dagmara
Wozniak of Siskinds LLP for
their contribution and for
their extensive involvement
creating the agenda,
soliciting speakers, mc’ing
the event and moderating
STG_Assyst_middlesex1-2pg 5/28/14 10:37 AM
Thank you to all of the
counsel and judiciary for
their practical advice and
their efforts in making
the conference a success.
They are as follows: The
Honourable Mr. Justice
Grace, Ian Wright, Maia
Bent, John McNair, Barb
Legate, John Brennan,
Nawaz Tahir, Dr. Stephen
Pitel, Casey Dockendorff,
Sue Noorloos, Jacqueline
Bunt and Mana Khami.
We are pleased to make
a donation to the London
Lawyers Feed the Hungry on
Page 1
behalf of our chairs and all
of our speakers.
Finally, special thanks to
our sponsors for helping us
make this event a success.
In particular, thank you to
our sponsors for their ongoing sponsorship, as well
as their generous door
prizes, swag and draws. We
are fortunate to have such
committed legal service
providers in our community.
Thank you to our generous
Gold Sponsor:Henderson
Structured Settlements LP.
Continue on Page 12
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Report on Past Programs
Continued from page 11
Thanks to our
Silver sponsors:
Calzonettimediate, MDD
Forensic Accountants, Hoare
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and PWC LLP.
Thanks to our Conference
Exhibitors: The Advocates’
Society, ADS Forensics
Inc., Davis Martindale LLP,
DMA Rehability, McKellar
Structured Settlements
Inc., Pursuit Health
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& AM Page 1
STG_middlesex1-2pg
5/28/14 10:39
Catastrophic Rehabilitation,
and TVA | The Legal
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This event would not
be possible without the
tremendous support of our
members. Thank you for
your ongoing attendance at
our localevents, seminars
and conferences.
An honourable mention goes
to Advocates LLP for having
more than 90% of their
firm’s lawyers attend the
conference!
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80 Dundas Street, London, ON N6A 6A1
June 2015
Bencher’s Report
I am pleased to announce
that the Southwest Region
elected four Benchers in the
recent election. There are
20 Benchers elected from
outside of Toronto so our
region is well represented
by the four successful
candidates. Congratulations
to Teresa Donnelly
(Goderich), Jacqueline
Horvat (Windsor) and Jerry
Udell (Windsor), who along
with myself were successful
in our campaigns. Judith
Potter, who has been elected
four times and has served
as a Bencher for the past
16 years, has been elevated
to a life Bencher. Judith
is the last life Bencher to
be appointed as recent
changes have eliminated the
position. The Treasurer will
be designating Committee
assignments before the end
of June.
The Bench has a number
of controversial issues
with which to deal in the
immediate future. ABS
remains the most significant
contentious issue. The
valuation of the Law Practice
Program (LPP) is not far
behind. All Benchers are
currently actively involved
in a number of small group
meetings intended to
develop the new strategic
plan. Already, the newly
elected Benchers are making
a contribution.
On May 27, 2015, Faisal
Joseph, my partner and
colleague at Lerners LLP,
was awarded the Law
Society Medal (LSM) for his
contribution to enhancing
the reputation of the
profession and for his
commitment to the rule of
law. The Treasurer read
the following citation when
presenting the medal to
Faisal:
“Faisal Joseph is a partner
at Lerners LLP in London.
He has demonstrated
leadership, integrity and the
highest skills in advocacy
in his representation of
clients whose cases do not
garner the support of public
opinion. He has often been
the face and voice of the
city’s Muslim community and
worked to promote interfaith
relationships.
He has been active on the
national and international
stages on peace, security
and human rights issues. He
was counsel for one of the
parties at the Commission
of Inquiry into the Actions of
Canadian Officials in Relation
to Maher Arar, which was led
by Dennis O’Connor, former
Associate Chief Justice of
Ontario and he spearheaded
www.middlaw.on.ca 519.679.7046
a Two-Million Dollar Chair
for Islamic Studies at Huron
College University.
Faisal Joseph has more
than 30 years of civil and
criminal trial experience
which includes both Federal/
Provincial crown attorney
and defence counsel in high
profile and serious criminal
cases at all levels of court
in Ontario, Nova Scotia and
New Brunswick. He is called
to the bars of Nova Scotia
(1986) and Ontario (1983).
In 2012, Faisal Joseph was
honoured with both the
Queen’s Diamond Jubilee
Medal for public service,
and the Middlesex Law
Association Award for
Distinguished Service.
In the letter of support it
was said:
“Faisal’s passion for the
law and for making the
world a better place
is evident in his keen
interest in and knowledge
of international human
rights, anti-terrorism
legislation and national
security as well as
hate crime issues.
He is committed to
educating the public
and those serving in
law enforcement on
the local, national, and
international stage on
13
Bencher’s Report
profession, I present
to you, Faisal Joseph,
the Law Society Medal
with all the rights and
privileges inherent in this
honour.
Continued from page 13
best practices through
numerous articles,
columns and lectures.
Faisal is the kind of
gentleman and gentle
man others aspire to be.
He is a great presence
and his generosity of
spirit is unparalleled in
London.”
Congratulations.”
On behalf of the Law
Society of Upper Canada,
pursuant to the authority
vested in me by the
Benchers in Convocation
assembled, in recognition
of your outstanding
service exemplifying the
highest ideals of the legal
Will Notice for the Estate
of Rose Runinoff
Anyone with knowledge
of a will for Rose Rubinoff
of Lambeth, Ontario
(4806 Colonel Talbot
Road) who passed away
on Sunday, May 24, 2015
is asked to kindly contact
Rebecca Magistrale
at 905-327-3062 or
[email protected].
14
Every four years this
period represents a time
of transition. Many of
the Benchers who were
committed to the position
were either prevented from
running due to having used
up the maximum number
of terms or, alternatively,
chose not to run for personal
reasons. Each and every
one of those Benchers
made a contribution over
the four years that I have
been privileged to serve
with them. Space does not
permit me to name each
and every one of those
who will not return, but I
would like to mention Linda
Rothstein, Julian Porter, Alan
Silverstein, Mark Sandler
and Alan Gold who provided
service far beyond that
which anyone could have
either asked or expected.
Their experience and sage
advice will be missed and
difficult to replace. On
their behalf, I extend
congratulations and a
heartfelt thank you for their
years of service.
Bench will be committed
to transparency and
accountability. With newly
elected Benchers like Rocco
Galati and Joseph Groia,
who would expect anything
different? The Law Society
has been committed to being
more open in the work that
it does. That initiative will
continue.
June is the month of Calls
to the Bar. In London,
approximately 100 new
lawyers will receive their
call, permitting them to
enter practice. With the
other calls around the
province, there will be over
1500 entering the profession
this month.
It is always important for
the Law Society to hear
from members of the
profession, particularly with
any criticisms or comments
on the work being done. It
is incumbent upon you if
you identify some issue of
concern to have your voice
heard.
Already it is apparent to
me that the newly elected
80 Dundas Street, London, ON N6A 6A1
-Michael Lerner
June 2015
Lee Rosen on Marketing,
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happen without effort.
My first employee was
Elizabeth. It took us awhile,
but we figured it out. After
about a year, we had our
communication mastered.
I had mastered the art of
communicating with one
employee.
Then we grew. I remember
the days when my entire
team could fit in my Honda.
We often jumped in and
went to lunch. We’d spend
lunch talking about office
issues and figuring things
out. It worked, and the firm
grew. The Honda was the
perfect tool for managing
our communication. We
stayed in touch with one
another without even
realizing we were doing it.
We hired our way right out
of that Honda. That’s when
the breakdowns started.
Once you lose your
communication system,
you’re in trouble. I see
it now, but I didn’t see it
when it was happening. I
assumed we were struggling
due to challenging cases,
marketing difficulties, and
financial issues. I didn’t
realize that it was all about
communication.
You’re going to smash into
communication issues as
Continue on Page 16
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www.middlaw.on.ca 519.679.7046
15
Lee Rosen
Continued from page 15
soon as you hire someone.
Then you’re going to hit
them again when you can’t
fit the new person in the car
for lunch.
You’ll hit them again at
certain growth levels.
Each time you hit one of
the communication walls,
you’ll see your growth stop,
and you’ll go backward.
You’ll regroup, and then
you’ll hire someone and,
unfortunately, hit the wall
again. It’ll happen over and
over until you figure out a
communication approach
that works for your team.
Once you realize how
communication affects
growth, you’ll see examples
all around you. You’ll see
one business expand like
crazy and then open other
locations. You’ll see one
of its competitors with
one location that grows
and contracts, grows and
contracts, and never gets
any traction.
What’s the Solution? How do
you change your system and
break through the barrier
you’re facing? How do you
go from one to two? From
four to five, from 20 to 21,
or from 49 to 50?
The growth and contraction
thing is what happens to
many law firms. The lawyer
in charge has an approach
that is good enough for a
certain level of growth. The
firm rockets to that level and
stops. It never goes beyond
the initial size. It gets stuck.
Your communication system
will be unique. It’ll be a
central piece of your culture.
It’ll be the thing that makes
it feel good (or not) to work
in your firm, and it’ll be the
approach that makes clients
happy (or not) and causes
them to say good things
about your business.
Why? Because the
communication system the
firm has works at one level
but not at the next. It needs
a new system.
What will it look like? It’ll
have several elements that
you’ll customize to become
your culture. It will involve
the following:
Continue on Page 17
London’s Family Law Team
Lisa Walters
519.931.3540
[email protected]
Wil Doran
519.931.3504
[email protected]
•
•
•
•
•
•
•
•
•
•
Divorce & Separation
Custody & Access
Child & Spousal Support
Property Division
Separation Agreements
Marriage Contracts
Cohabitation Agreements
Adoption
Mediation
Collaborative Law
For more information:
millerthomson.com/family-law
OneLondonPlace•2010-255QueensAve•MillerThomsonLLP
519.931.3500
16
80 Dundas Street, London, ON N6A 6A1
June 2015
Lee Rosen
Continued from page 16
1. Vision. It’ll start with a
clear sense of what’s ahead.
The leadership will have a
plan and communicate it
over and over. The message
will stay at the center.
2. Team. The vision will be
supported by a great team
of people who understand
the mission and objectives of
the business because it gets
reinforced all the time.
3. Meetings. Yes, the
dreaded meetings will take
place in a systematic and
regular manner. They’ll
happen frequently and may
involve some or all of daily,
weekly, monthly, quarterly,
and annual meetings of the
entire team or parts of the
team. Every group will find a
different rhythm and system.
4. Feedback. The
leadership will know the
team “gets it” because
of frequent feedback and
interaction involving frequent
communication between
manager and employee.
That communication will
certainly involve frequent
communication over small
developments and regular
communication regarding
the employees’ development
within in the business.
A law firm with a good
communication system in
place knows what it’s trying
to accomplish. That vision
is communicated so often
that everyone in the firm can
articulate it. That happens
as a result of consistent
group discussion added to
one-to-one discussion with
each employee.
Communication is simple.
Except when you need to
communicate.
Fortunately, all it takes is
time and effort. You can
master it if you’re willing
to prioritize it and make it
happen. If you do it, you’ll
grow. If you don’t, you’ll
continue to bounce your
ideas off the cleaning crew.
“Here’s Why Most Law Firms
Don’t Grow” is a post from
https://divorcediscourse.com.
This article first appeared
on May 20, 2015. Selected
by David J. Thompson
[email protected]
and reproduced with
permission.
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www.middlaw.on.ca 519.679.7046
17
Appealing Thoughts
Determining The Proper
Appeal Route
Civil litigators considering
an appeal must be careful
not to wind up in the wrong
court. This article outlines
the factors determining the
proper route and method for
appealing court decisions.
There are three major
considerations: (a) was the
decision interlocutory or final
in nature; (b) what is the
appropriate court, and (c) is
leave to appeal required?
Determining whether a
decision was interlocutory
or final is not always easy.
Generally speaking, orders
made at the conclusion
of trial are usually final in
nature. On the other hand,
orders made, for example,
in the discovery process
are usually interlocutory in
nature. However, for many
matters, the answer is not
clear.
The recent decision of Verma
v. Nagra Price J. provides a
succinct review of the law.
In short, an interlocutory
order is one which does not
determine the real matter in
dispute between the parties
— the very subject matter
of the litigation, but only
some matter collateral. On
the other hand, an order will
be final if it finally disposes
of the rights of the parties
to the litigation, or if it
18
conclusively disposes of an
issue raised as a defence
and thereby deprives the
defendant of a substantive
right, which could be
determinative of the entire
action.
Having determined the
nature of the order, one
must next turn to the Courts
of Justice Act (Act)for a
determination of the proper
court. In Ontario, most
appeals are taken to the
Divisional Court or the Court
of Appeal.
With respect to the
Divisional Court, s. 19 of
the Act provides, inter alia,
that the Court may hear
appeals from a final order of
a Superior Court of Justice
judge if the amount in issue
is less than $50,000.00,
or from a final order of a
master or case management
master. The Court may
also hear appeals from an
interlocutory order of a
Superior Court of Justice
judge, with leave.
With respect to the Court
of Appeal, s. 6 of the Act
provides that appeals lie to
that Court from orders of the
Divisional Court, with leave,
on a question that is not a
question of fact alone. A
final order of a judge of the
Superior Court of Justice
is also appealable to the
Court of Appeal, provided
the amount in issue exceeds
$50,000.00and is not a
matter for which an appeal
lies to the Divisional Court
under another act.
Sections 6 and 19 of the Act
also deal with costs appeals,
but that issue will be the
subject of another article.
The final step in the appeal
route process is determining
whether leave is required.
The two most common leave
requirements are: (a) to
the Divisional Court from
an interlocutory order of a
Superior Court of Justice
judge (s. 19(1)(b); and (b)
to the Court of Appeal from
an order of the Divisional
Court (s. 6(1)(a)).
The Jurisdiction Clause in
the Notice of Appeal
About ten years ago, due
to the frequency of appeals
filed in the wrong court,
the Notice of Appeal,
Form 61A, was changed
to include a “Jurisdiction
Clause”, which requires the
Appellant to identify the
governing statute, nature of
the order, whether leave is
required, and other relevant
facts. Rather than treating
this clause as a boilerplate
requirement, counsel
should view it as a very
useful tool to confirm the
correctness of their selection
of the appealcourt. Counsel
should be as specific as
80 Dundas Street, London, ON N6A 6A1
Continue on Page 20
June 2015
M. Diann Vail
BA (Hons), CGA
Forensic Document Examiner
Court Qualified
519-668-5677
[email protected]
We can help You find the
SERVING SOUTH-WEST ONTARIO
Derek Sarluis, CIP
Mediator & Appraisal Umpire
Specializing in Bodily Injury
and Property Damage
disputes
566 Oxford St.
www.mandc.ca
(at William)
London, Ontario
www.middlaw.on.ca 519.679.7046
Please call our ADR Coordinator or book online.
1-844-967-5782
T 416-866-2400 F 416-866-2403
www.yorkstreet.ca
19
Appealing Thoughts
Continued from page 18
possible in completing the
clause to ensure that each
element has been properly
considered.
Some Specific Matters
Appeal Routes Determined
by Other Statutes:
Section 6 of the Actdenies
jurisdiction to the Court of
Appeal where the appeal in
question lies to the Divisional
Court under another statute.
There are a number of
acts which specify that
appeals of certain matters
lie to the Divisional Court,
e.g.Business Corporations
Act, Construction Lien
Act,and Partition Act.
Small Claims Court Appeals:
Final orders of the Small
Claims Court go to the
Divisional Court (s. 31 of the
Act).
Master / Case Management
Orders: Interlocutory
orders are appealable to the
Superior Court of Justice (s.
17 of the Act), final orders
to the Divisional Court (s.
19(1)(c) of the Act).
Appeals from Orders of
Single Justices of an Appeal
Court: Sections 7(5) and
21(5) of the Act provide
that panels of the Court of
Appeal and the Divisional
Court, respectively, may set
aside or vary decisions made
by a judge of the court. For
20
example, if a single justice of
the court to which an appeal
is taken makes an order for
security for costs, that order
can be reviewed by a panel
of the court.
Research the Proper
Appeal Route
The consequences of
commencing an appeal in
the wrong court are serious.
The right to appeal may be
lost if brought to a court
which has no jurisdiction
to hear it. The best way
to avoid this result is to
research the proper route
before drafting the Notice
of Appeal. If there is
uncertainty as to the final
vs. interlocutory nature of
the order, numerous case
examples are provided
in the annotated Rules of
Civil Procedure texts. Also,
counsel should search for
appellate decisions on
matters similar to their
client’s case, specifically
identifying the governing
statute, if any. Such
appellate decisions may also
indicate whether leave to
appeal had been required.
What if You Find Yourself
in the Wrong Court
Proceeding in the wrong
court should obviously
be avoided. However, s.
110 of the Act provides
that matters brought in
the wrong court may be
transferred or adjourned
to the proper court. Thus,
for example, the Divisional
Court has discretion to
transfer an appeal to the
Court of Appeal, if the
appeal is properly within
the jurisdiction of the Court
of Appeal. The alternative
is to dismiss the appeal for
lack of jurisdiction.As noted
in Verma v. Nagra, supra,
factors to be considered
in deciding whether to
order a transfer are: (1)
does the appellant have a
meritorious appeal (in the
sense that it is arguable);
(2) will the respondent
suffer undue prejudice
because of further delay
in having the appeal heard
by the Court of Appeal;
and (3) did the appellant
move expeditiously, once
jurisdiction was disputed?
The best practice, however,
is to give serious thought
to each of the abovementioned factors and, if in
doubt, conduct the proper
research to ensure that the
appeal is brought in the
correct venue.
In my next article, I will deal
with drafting the Notice of
Appeal.
80 Dundas Street, London, ON N6A 6A1
Ken Peacock
[email protected]
June 2015
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Hon. John F. McGarry, Q.C.
Retired Superior Court Judge
udge
• Professional negligencee
• Estates
• Employment law
• Insurance Litigation including
cluding
personal injuries
• Corporate and Commercial
ercial law
• Sexual assault claims
• Construction Disputes
Monthly or Hourly Rent Call or Email: Greg Willoughby 519-­645-­1500 [email protected] mcgarrymediations.com
t. 519-434-1221 [email protected]
200 Queens Ave., Suite 304, London, ON N6A 1J3
www.middlaw.on.ca 519.679.7046
21
He who wins last, wins.
Whether you won at trial and face an appeal or lost at trial and wish to launch
an appeal, we can help you determine the final outcome for your client.
To sign up for the Lerners’ Appellate Advocacy Netletter, visit www.lerners.ca/appealsnetletter
Toronto: 416 867 3076
Earl A. Cherniak, Q.C., William Pepall, Kirk Boggs, Mark Freiman, Kirk Stevens, Angus McKinnon,
Bryan Smith, Jasmine Akbarali, Brian Radnoff, Cynthia Kuehl, Jason Squire, Stuart Zacharias
London: 519 672 4510
Peter Kryworuk, Andrew Murray, Carolyn Brandow
www.lerners.ca
22
80 Dundas Street, London, ON N6A 6A1
June 2015
Your Say
As spring turns to summer,
many of our firms greet
summer students and
new articling students.
Fresh from school myself,
I have noticed that an
undergraduate course in
Screen Writing and law
school’s Civil Procedure have
both served me well over the
past year.
This month we asked
members of the MLA the
following question:
What is the most
important or useful
course you took during
your post-secondary
education (law school or
otherwise) and why?
The Law of Contracts. This
course provided me with the
foundation for the study of
other areas of law, many
of which have a connection
to the basic principles of
contract law.
- Robert J. Dack
I would have to say that
the most useful law school
course I took was a third
year advanced legal research
course in 1989 taught by
Professor Lawford at Queen’s
University. The course
was all about how to use
the first electronic legal
research database, then
known as QUIC/LAW, for
Queen’s University Institute
for Computing and Law,
and now called Quicklaw.
Professor Lawford was one
of the founders of the QUIC/
LAW project. The story goes
that it took the machine all
of 15 seconds, back in 1974,
www.middlaw.on.ca 519.679.7046
to correctly answer the first
question put to it: Wasn’t
there a case where a cow
was struck by a car driving
up a hilly, winding road?
- Angelo D'Ascanio,
Advocates LLP
The most important course
that I have ever taken was
the LSAT prep course. If
not for that course I’d be a
History teacher right now.
There are some days that I
curse that course…
- Matthew K. Dale, Lerners
LLP
Submitted by Stuart McAlister,
Siskinds LLP
23
Tasting Briefs XII
This month, we continue
our survey of lesser known
wine regions. I have chosen
to review wines from B.C.,
Oregon and Washington
State. The mild and dry
conditions found in the
interiors of these regions
is ideal for grape growing,
though the heat they receive
is significantly lower than
further southin California.
These areas specialize
in white wine, which is
fortuitous given that
summer is arriving.
Mission Hill
Reserve
Chardonnay 2012;
Okanagan Valley,
B.C., $21.95
This wine has rich
layers of pineapple
and pear, with an
open bouquet and
hints of vanilla.
While it starts
out understated,
24
it develops into a more
complex palate, with green
guava and lime. Strong
minerality that creates a
unique blend of oak and
metal, ending each sip with
a metallic twinge. This wine
is well balanced and would
pair well with barbequed
salmon.
14 Hands Vineyards Hot
to Trot White Blend 2011;
Washington State, $14.95
Light and breezy,
this blend is
difficult to review.
It has very few
distinguishing
characteristics. Pale
in colour, with a
balanced acidity, it is
definitely a non-wine
drinkers' wine. While
there is nothing
offensive about
it, there is also nothing to
praise. The entire time that
I spent drinking it, I was
searching for some flavour
or aroma to describe it. By
the end, I came up with two,
one of those being entirely
unhelpful. The notes are
over-ripe apple and grape. I
would not recommend this
wine.
Firesteed Oregon Pinot
Gris, 2012; Oregon, $17.60
This would make an
excellent addition to a
summer dinner party.
It is expressively
aromatic, with
tropical fruit flavors
ofmandarin orange
and honeydew melon
laid over a floral
base. It is bright
while maintaining a
broad texture, and
lingers for a pleasant
after effect.
80 Dundas Street, London, ON N6A 6A1
--Paul Hendrikx
June 2015
Members Update
Patrick Michael – new
member practicing
at the Family Court
Duty Counsel’s office
and his email is
[email protected]
Donna Kraft – her new
fax number is 1-888212-0387
Sean Brennan – is
now practicing at McCall
Dawson Osterberg
Handler LLP and his
email is [email protected]
Michael Cormier – is
practicing on his own
and can be contacted
at [email protected] or by
phone at 519-709-1446
Four more years
Lerners is pleased to announce that Michael Lerner has been re-elected as
a bencher to the Law Society of Upper Canada.
The Law Society of Upper Canada was formed in 1797. Its mandate is to govern
the legal profession in a manner consistent with the public interest. The
Law Society is responsible for licensing, legal education, competency and
professional conduct.
Benchers are elected province-wide
by all practicing lawyers. Michael’s
re-election complements his
longstanding commitment
to fairness as well as to his
years of service on various
community and charitable
Notice
Retiring
(after 42 yrs)
boards throughout the region.
Congratulations Michael!
Wills & Estates
Practice
If interested, contact:
Tom Dean
London
Toronto
519 672 4510
416 867 3076
www.lerners.ca
519-474-4114
www.middlaw.on.ca 519.679.7046
25
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