Law Times

March 4, 2019

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LAW TIMES 2 COVERING ONTARIO'S LEGAL SCENE | MARCH 4, 2019 www.lawtimesnews.com marketing, reading financial statements, the general business of law," says Tailor, who started her Mississauga, Ont.-based firm as a sole practitioner but re- cently added other lawyers. "Depending on where you ar- ticled or your prior work experi- ence, you don't have any interac- tion with them until you start up your own business." According to the Law So- ciety of Ontario's online data, more than 73 per cent of On- tario law firms that are licens- ees' primary businesses have a single lawyer. About 51 per cent of profes- sional regulation complaints re- ceived by the law society in 2016 were about sole practitioners, while 79 per cent of all com- plaints about lawyers were about licensees in firms with fewer than five practitioners, accord- ing to the LSO's 2017 annual report. Rene Larson, a bencher can- didate and sole practitioner in Thunder Bay, Ont., says if elected he would like to see the law soci- ety lower the price on continu- ing professional development and put more content online so solo practitioners can brush up on new areas of practice as chal- lenges arise. "The law society, I think, is mishandling the professional competence part of it and the learning standards — and focus- ing too much on professional regulation, rule making and rule enforcement, rather than help- ing lawyers be better lawyers," says Larson. "Knowledge and education will work much better than mili- taristic regulation." Kenora, Ont.-based bencher candidate Cheryl Siran is the managing partner of small firm Hook Seller & Lundin LLP and says that funding for law libraries — factored into a budget that is approved by Convocation — is an example of an important issue that may not be obvious to lawyers in bigger firms. "For many new lawyers — rural, remote, solo, small — the availability of library funding is important in terms of sup- porting competence as well as a physical location for informal mentorship," says Siran. Toronto lawyer Barbara Hen- drickson, founder of BAX Se- curities Law and a bencher can- didate, says moving from a big shop to a solo firm opened her eyes to how the existing rules ap- ply differently in a big firm and small firm context. For example, says Hendrick- son, within a big firm, it's not unusual to be compensated for bringing in new clients, even if they are referred to someone else within the firm. However, she says, referral fees between small firms can face more regulatory scrutiny. Similarly, regulations around so-called alternative business structures are often discussed in the context of large, pub- licly traded firms, rather than arrangements between small business owners, Hendrickson says. "I think there has to be a greater recognition of how the existing rules differentially impact small firms and large firms," she says. LT NEWS Continued from page 1 Candidate wants CPD prices lowered Important to evolution of anti-SLAPP claims Continued from page 1 pation Act in its decision last August in Pointes Protection. In these two latest rulings, especially in the area of online commentary, the court is signalling that the "public interest hurdle" as referenced in Pointes is going to be significant for plaintiffs, says Toronto lawyer Iain MacKinnon. "In dismissing these cases, the court is saying there needs to be some quantifiable or substantial damages," notes Mac- Kinnon, a partner at Linden & Associates, who frequently acts for clients in defamation proceedings. By requiring the plaintiff to present this evidence at the time of an anti-SLAPP motion, the Court of Appeal is not following the traditional way of dealing with damages in this area of the law, he says. "Once you have established liability, you don't have to prove damages. They are presumed," says MacKinnon, add- ing that the amount of damages would normally be a matter determined at trial. Sebastian Winny, who acted for the successful party in New Dermamed, says the Court of Appeal's recent decisions are an attempt to provide additional direction to Superior Court judges in these cases. "It is inviting motion judges to focus on the public interest hurdle. That may be a simpler route," says Winny, a civil litiga- tor based in Kitchener, Ont. "In general, I would say these actions are inherently chal- lenging, unless the plaintiff can establish the existence of damages and a causal relationship [to the comments]," Winny adds. Ruzbeh Hosseini, who represented New Dermamed, says businesses that feel they have been defamed by an online comment or review face a conundrum as a result of the anti- SLAPP provisions. "You are supposed to have all your ducks in a row before the [s. 137] motion is brought. Do you wait so you can col- lect sufficient evidence of damage to your business?" asks Hosseini, a lawyer at Cambridge LLP in Toronto. Delaying in filing a claim my increase the harm to your business, he points out, but taking swift legal action may result in it being dismissed because the full impact of the comments can not yet be shown. New Dermamed filed its lawsuit against Danna Sulaiman in November 2017, a few weeks after she posted comments on a Google review page about the business. She was critical of a laser resurfacing treatment on her cheeks and stated that it caused "volume loss" on her face. The company's lawyers wrote to her after the first review and in- sisted it be deleted. She subsequently revised the review and included refer- ences to the legal letters sent to her. Justice Peter Cavanagh dismissed the action under the s. 137 provisions. He found that the business had met the test of substantial harm but failed to show that Sulaiman had no valid defence of "fair comment" in the review. As a result of that finding, the judge said it was not nec- essary to consider the public interest balancing aspect of the statute. The Court of Appeal, in its ruling issued on Feb. 25, sought to clarify the bar for plaintiffs to meet when arguing that there is no valid defence for allegedly defamatory comments. "The onus on the appellant was not to show that there was no possibility that the defence of fair comment could succeed but, rather, just that it was reasonably possible that a trier could conclude that the defence would not succeed," said the panel of justices David Doherty, Gladys Pardu and Ian Nord- heimer. The Court of Appeal added that some of Sulaiman's review could reasonably be interpreted as statements of fact and the defence of fair comment would not apply. However, it was then necessary to apply the "balancing exercise" set out in s. 137.1(4) (b). "While the appellant has filed evidence of some lost busi- ness as a result of the reviews that the respondent posted, it has not provided any quantification of those losses nor identified how those losses relate to its overall business. The appellant has not, therefore, established that any harm that it has suf- fered at the hands of the respondent is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression," the court wrote. 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