Law Times

November 25, 2013

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ICSID DEBATE RESOURCE MANAGERS Canadian firms joining the trend Litigation Support Scan. Code. Load e: ssoil@docudavit.com www.docudavit.com $4.00 • Vol. 24, No. 38 ntitled-2 1 P3 FOCUS ON Investment treaty has many downsides P7 L aw TIMes Business of 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 13-11-04 4:13 PM P9 November 25, 2013 ntitled-4 1 'Great judicial mediator' set to retire 12-03-20 10:44 A Winkler plans to continue ADR focus after stepping down BY Glenn KAutH Law Times A s he gets set to retire on Dec. 10, Ontario Chief Justice Warren Winkler plans to focus on one of his passions, alternative dispute resolution, after he leaves the bench. Among his post-retirement activities, he'll be spending time at the new Winkler Institute for Alternative Dispute Resolution at Osgoode Hall Law School as a distinguished visiting professor. It's fitting given his record of success in using mediation in high-profile matters, including the Air Canada restructuring case and a dispute between Ontario Hydro and its power workers. He maintains his faith in mediation despite his disappointment at the breakdown of talks in the Nortel Networks Corp. bankruptcy proceedings. "I'm disappointed whenever anything doesn't resolve," he says of the Nortel matter, a case highly criticized for racking up massive professional fees, including for legal services. At a time when the profession is expressing major concerns about growing motion and trial delays in civil matters, Winkler suggests mediation was a successful tool for resolving the issue when he was the regional senior judge of the Superior Court in Toronto. When he took on that job in 2004, the court had about 40 cases outstanding as the fall session approached, he says, noting the wait time for trials was approaching 'When I started talking about access to justice 6-1/2 years ago, I was really a pioneer,' says Warren Winkler. Photo: Glenn Kauth 37 months. "We were totally bogged down. We reduced the time for trials to on demand," he says, crediting efforts to make mediation of those cases more effective by bringing in judges with expertise in the area of law at stake right with dramatically cutting the backlog. "My recollection is we settled them all," he adds, calling that period "the worst year of my professional life, frankly, bringing about all of those changes." Paul Pape, an appellate lawyer at Pape Barristers Professional Corp., says Winkler has a knack for helping parties reach consensus because of his high emotional intelligence. "He's got the EQ and it's a large reason that he stands out as a judge," says Pape, who has appeared before Winkler on several occasions. "He's got the mastery of the common touch," he adds, noting Winkler has always shown a great ability to understand people and what their "real interests are." Roy Filion, senior partner at what had been Winkler Filion and Wakely before Winkler's appointment to the bench in 1993, says his former colleague's skills at resolving matters were evident in his role as a negotiator. "He was a great negotiator," says Filion, now of managementside labour and employment firm Filion Wakely Thorup Angeletti LLP. "To be a good mediator, you have to be a good negotiator because mediators have to understand negotiations." See Winkler, page 2 Court relieves ex-partner of goodwill payments Law Times A recent Superior Court decision in a dispute over a partnership agreement is a reminder for law firms to fully iron out the details with their new partners and leave nothing to chance, experts say. In Djurdjevac v. Deacon Spears, Toronto law firm Deacon Spears Fedson & Montizambert LLP had an agreement with lawyer Marko Djurdjevac that he would pay an annual goodwill payment of $25,000 upon joining the partnership. Djurdjevac, who had been an articling student at the firm, was to make the payment for five years after becoming a partner there. But two years later, he left the partnership. In a decision on Nov. 14, Superior Court Justice David Corbett found he didn't have to keep making the payments after leaving the firm. The decision came down to what the parties said at the time Djurdjevac signed the documents to join the partnership. Although they discussed the amount and period for the goodwill payments, the partners didn't consider what would happen if Djurdjevac left the partnership prior to paying in full, the judge said. "The inference I draw from the evidence is that the parties did not put their minds to Mr. Djurdjevac leaving the partnership in less than five years," wrote Corbett. "The evidence of both sides casting shades of meaning on their discussions six years ago that would bear on this question is patently self-serving and not entitled to any weight. If either side had put its mind to the issue, the issue would have been discussed expressly." The law firm insisted the payment was akin to a bank loan but had little proof to back up that claim, according to the decision. "And I can conclude that any ambiguity arising from the failure to document the terms of the goodwill payments ought to be resolved against the firm," wrote Corbett. According to Colin Cameron, president of Profits for Partners Management Consulting Inc., new partners often make goodwill payments in order to avail themselves of the firm's established client base after entering the partnership. The payment is separate from operational capital contributions, says Cameron. The judge's decision in the case didn't surprise Lerners LLP partner Brian Radnoff, who says the duty to include all terms in a partnership agreement falls onto law firms. "Given that the partnership agreement — and this is true in most law firms — is essentially imposed on new partners, the judge was essentially saying if the partners wanted something in a particular way, they should have put that in their partnership agreement." He adds: "What was significant is that these partnership agreements are forced onto the perspective partner and if the law firm or PM #40762529 BY YAMri tADDese See Little, page 2 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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