Law Times

November 18, 2013

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TRADES COLLEGE PATE ESTATE Case 'clearest out there' on punitive damages Follow LAW TIMES on www.twitter.com/lawtimes $4.00 • Vol. 24, No. 37 P2 New regulator a bad idea FOCUS ON P6 L aw TIMEs 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 ntitled-4 1 P8 Environmental Law November 18, 2013 Judges resisting stiff crime laws 12-03-20 10:44 A Gov't challenged over mandatory minimums, victim surcharges BY YAMRI TADDESE Law Times A s the Ontario Court of Appeal dealt a blow to the government's three-year mandatory minimum sentence for gun possession last week, some Ontario judges are finding other ways to resist crime legislation that takes away their discretion to waive victim surcharge fines even when they think criminals can't afford to pay. Lawyers say judges have either given criminals a very long time to pay the fee — in one case 50 years — or haven't imposed it at all in some matters. Last month, the government doubled the victim surcharge fine, a levy collected from criminals to fund victim services. It also made the fine mandatory as of Oct. 24. Under the new law, courts can impose a surcharge equal to 30 per cent of any fine awarded against the offender. In cases where there's no fine, the surcharge is $100 for a summary conviction and $200 for an indictable matter. "A number of judges in Ottawa, as well as a number of judges visiting from other jurisdictions . . . had that adverse reaction to it because it removes discretion and it results in hardship," says Ottawa lawyer Douglas Baum. Baum recently represented a man who had pleaded guilty to stealing a bottle of rum from the LCBO. In that case, Ontario Court Justice Heather Perkins-McVey gave the man 50 years to pay a $100 victim surcharge fine. In 50 years, the client will be 81 years old, says Baum. "What are they going to do? Keep [the order] for 50 years Judges have been expressing concerns about the constitutionality of the new law on victim surcharge fines, says Anthony Moustacalis. Photo: Laura Pedersen and try and enforce it? Turn it over to collections?" In another case, Ontario Court Justice Peter Coulson simply refused to impose the surcharge on a man convicted of stealing chocolate bars from a Dollarama store. "A guy stealing chocolate bars doesn't have the money to pay the fine or he's going to have to steal to pay the fine," says Baum. "You do need to leave some discretion in cases where people have no money." The federal government says those who are unable to pay the surcharge "will be able to discharge the victim surcharge by participating in a fine option program or through alternative mechanisms." But in Ontario, no such program exists. "The whole thing is really poor planning," says Baum. "It's discordance between passing laws at the federal level without assuring that the administration of justice in the provinces have the resources to accommodate it." Criminal Lawyers' Association president Anthony Moustacalis says judges have been expressing concerns about the constitutionality of the new law. "In my view, this is ill thought out because it creates more expense to enforce the collection in the back end instead of making a determination at the beginning whether a person can pay," he says. "My complaint is that it's a waste of money to chase after people and have police officers serve them with notices to come to court when you already know they're on welfare and they're poor. So why would you spend more money to find out if they're still poor after five months to try to collect $200 out of them instead of making that See Federal, page 4 BY JULIUS MELNITZER For Law Times I n a trio of new rulings, Superior Court Justice Edward Belobaba has outlined his preference for a no-costs rule in class actions while awarding substantially lower amounts than plaintiffs' counsel had requested on certification motions and outlining in detail how he'll deal with the issue in the future. The burden of Belobaba's remediation efforts in response to his concern about increasingly expensive proceedings appears to be falling solely on the shoulders of class counsel. In three separate cost assessments, all of which followed successful certification motions, CLL-FP_LT_Nov4_13.indd 1 Belobaba made awards that were substantially lower than the sums requested by veteran class counsel firms. Indeed, the decisions undercut their requests by some $1.5 million, including the disallowance of substantial disbursements. In Rosen v. BMO Nesbitt Burns Inc., Belobaba awarded $290,000 (all figures include disbursements) to plaintiffs' counsel Koskie Minsky LLP. The firm had asked for $575,000. Defendant's counsel Lenczner Slaght Royce Smith Griffin LLP had said costs shouldn't exceed $315,000. In Dugal v. Manulife Financial, plaintiffs' counsel Siskinds LLP had asked for $1.18 million. The defence teams from Torys LLP, Lenczner Slaght, and McCarthy Tétrault LLP said the award shouldn't exceed $418,000. Belobaba awarded $467,000. In Crisante v. DePuy Orthopaedics, plaintiffs' lawyers Kim Orr sought more than $700,000. Defendants' counsel from Blake Cassels & Graydon LLP asked for a cap of $125,000. Belobaba awarded $175,000. "We're all somewhat dumbfounded," says Won Kim of Kim Orr. "What Belobaba is trying to do is to minimize the role of certification by weaning people away from an Armageddon approach to the litigation and de-emphasizing the merits component. But in my view, he's alone among Ontario's judges." In the real world, Kim says, See Fellow, page 4 PM #40762529 Judge takes aim at class counsel in lowering costs 'We're all somewhat dumbfounded,' says Won Kim. 13-10-31 12:47 PM

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