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Oct 21, 2013

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ELLISDON BILL DNA EVIDENCE P4 Binnie calls for corroborating proof Follow LAW TIMES on www.twitter.com/lawtimes $4.00 • Vol. 24, No. 33 FOCUS ON Legislation a simple fix to ancient wrong P6 L aw TIMEs Trusts & Estates Law CO V E R I N G O N TA R I O ' S L E G A L S C E N E • W W W. L AW T I M E S N E W S . CO M P10 October 21, 2013 ntitled-4 1 12-03-20 10:44 AM Amicus role in civil suits expanded PBLO looking to extend pro bono program to other courts BY YAMRI TADDESE Law Times P ro Bono Law Ontario says it's looking to expand its amicus curiae services in civil lawsuits. The use of amicus curiae may be a lot more common in criminal cases, but their role in civil matters is also important in promoting access to justice, says Matt Cohen, PBLO's director of litigation projects. Having already introduced the idea at the Court of Appeal in 2010, PBLO is now starting a similar program for civil matters at the Superior Court. It also plans to take the effort to other courts, including the Divisional Court and even the Tax Court of Canada. Why not, says Cohen, when "it has worked and the courts are thrilled." In fact, Superior Court Justice Eva Frank reached out to PBLO about perhaps getting amicus counsel recently when faced with an unrepresented defendant in a complex civil sexual assault case. Sure enough, PBLO was able to find lawyers at Lerners LLP who agreed to take up the role of amicus curiae. "There are lawyers there who are experts at this who can really provide the court with a very strong piece of work in precisely the area that the court would be missing," says Cohen of the involvement by Lerners lawyers. The case before Frank involves a historic sexual assault allegation where the plaintiff is claiming abuse as a teenager, says Anna Matas, one of the lawyers at Lerners 'I can never be positive that someone is going to step forward, but my experience has been exclusively that lawyers have a very, very strong appetite to do this kind of work,' says Matt Cohen. Photo: Laura Pedersen who took on the role of amicus curiae. The plaintiff will call two expert witnesses at trial, says Matas, who notes it's important to have proper cross-examination. PBLO's efforts in the area come from a realization that having amicus curiae acting pro bono is "an idea that can harmonize so many interests that are at play in a lawsuit," says Cohen. Apart from the obvious interest on the part of self-represented litigants in getting help in the courtroom, the role of amicus curiae also benefits everyone else involved, he adds. "There's the interest that the court has to ensure that justice is done, which can best happen when each side can put their best foot forward. There's the interest also that opposing counsel have in resisting a pressure that they feel to give advice to a self-represented litigant." In deciding to expand the amicus program, PBLO can also look to the recent final report of the National Action Committee on Access to Justice in Civil and Family Matters. "We're feeling buoyed by the finding of the national action committee and its report," says Cohen. "As part of its innovation goals, and specifically in relation to self-represented litigants, there's a call in that report for more pro bono and more duty counsel." The report urges the courts and tribunals to promote "appropriate and accessible processes" for litigants who have no counsel. "To achieve this goal, courts and tribunals must be co-ordinated and integrated with the [early resolution services sector] information and service providers (some of which may be located within courts and See Lawyers, page 5 Firm fails in bid to replace class counsel over certification delay Law Times A 'We were in the best position to make strategic decisions about where the case is going to go,' says Won Kim. Superior Court judge has rejected a law firm's motion to replace the class action counsel with carriage of the file in a drug case after finding lawyers may take as long as they see fit to move on a matter provided the delay is reasonable. Kim Orr Barristers Professional Corp. had won a carriage motion over McPhadden Samac Tuovi LLP in Waheed v. Glaxosmithkline Inc., a class action involving a diabetes medication called Avandia. But after three years went by and Kim Orr hadn't proceeded with the certification motion, McPhadden Samac Tuovi started getting impatient. The firm said the delay was unreasonable and suggested the court should remove Kim Orr as counsel for the plaintiffs. If it replaced Kim Orr, the other firm also said it would bring a motion for certification immediately. But in ruling on the issue on Oct. 8, Justice Edward Belobaba dismissed the application after finding a law firm has discretion to decide on the structure of a case, including its pace. Won Kim of Kim Orr tells Law Times the firm was watching the proceedings in Martin v. Astrazeneca Pharmaceuticals PLC before taking any major steps. Waheed is "a massive file," he adds, noting "you don't want to gamble." Kim says Belobaba got it right when he said class counsel know what's best for the class members. "As class counsel, we have a lot of confidential information that we couldn't say. We were in the best position to make strategic decisions about where the case is going to go," he says. Belobaba reflected that sentiment in his ruling. "In my view, any test for the removal and replacement of plaintiffs' counsel in a proposed or actual class action proceeding must recognize that as a general rule class counsel, acting on plaintiffs' instructions, should be able to run the lawsuit PM #40762529 BY YAMRI TADDESE See Useful, page 5 REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ENCHANCE YOUR LISTING TODAY! With more than 218,000 page views and 51,000 unique AVAILABLE ONLINE AND IN PRINT CLLwebsite_LT_Oct21_13.indd 1 Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist. com with an annual Gold or Silver Enhanced listing package. visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com 13-10-16 1:13 PM

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