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September 22, 2014

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Solicitors organizing to boost numbers at Convocation By yamri Taddese Law Times ith high stakes in the Law Society of Upper Canada's conversation about alternative business structures, Ontario solicitors are looking to boost their voice in the upcoming bencher elections given that there are just a handful of them on the regulator's governing body. That's why there's a movement underway to get out the solicitor vote in the election scheduled for the spring. According to a 2009 law society governance task force report, bar- risters have consistently outnum- bered solicitors by more than five to one among elected benchers in the last four elections even though the latter represent 30 per cent of all lawyers. And now several organizations, including the County & District Law Presidents' Association and the County of Carleton Law As- sociation, will be recruiting solici- tors throughout the fall and trying to convince them to run for a seat at Convocation. "It has come up that we really aren't represented very fully as benchers," says Nancy Johnson, chairwoman of the County of Carleton Law Association's real estate lawyers committee. The law association, along with CDLPA, will create a network of solicitors who will receive com- munication about the lack of rep- resentation on the law society's governing board, says Johnson. The organizations will also ap- proach solicitors to run for bench- er positions while also trying to find out why they have chosen not to in the past. With alternative business structures on the law society's ra- dar and the looming possibility of non-lawyer ownership of law firms, solicitors are looking to have a stronger voice. For starters, they say the consideration of alter- native business structures is more about an access to justice problem they had no role in creating. "We don't feel our clients have an access to justice issue," says Johnson. "We tend to give very good service to our clients at a pretty THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS More detail and a wider scope of legal contact information for Ontario than any other source: ȕ0WFS27,000 lawyers listed ȕ0WFS9,000 law firms and corporate offices listed ȕ'BYBOEUFMFQIPOFOVNCFSTFNBJMBEESFTTFTPGȮDFMPDBUJPOTBOEQPTUBMDPEFT Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation 1FSGFDUCPVOEȕ1VCMJTIFE%FDFNCFSFBDIZFBSPOTVCTDSJQUJPOȕ0OFUJNFQVSDIBTF- .VMUJQMFDPQZEJTDPVOUTBWBJMBCMF1SJDFTTVCKFDUUPDIBOHFXJUIPVUOPUJDFUPBQQMJDBCMFUBYFTBOETIJQQJOHIBOEMJOH O N TA R I O L AW Y E R' S P H O N E B O O K Untitled-3 1 14-05-20 3:25 PM Bar shocked at 'unprecedented' recusal Judge suggests appeal factum claimed 'untruthful conduct' By yamri Taddese Law Times n a move some lawyers are calling unprec- edented, Tax Court of Canada Justice Patrick Boyle has recused himself from completing further proceedings in a case after finding appeal materials filed in the matter had ac- cused him of "deceitful and untruthful conduct." "I think it's unprecedented, certainly, and I've been doing this for 37 years," says Davis LLP liti- gation lawyer Gavin MacKenzie of Boyle's Sept. 4 order in McKesson Canada Corp. v. Her Majesty the Queen. Boyle had rendered a decision last year in fa- vour of the government in McKesson, a case about transfer-price adjustments between McKesson Canada and its parent company, McKesson Inter- national Holdings (MIH). But in the recent order, Boyle said he would no longer sit on the case in order to wrap up further issues such as costs be- cause the statements made in McKesson Canada's appeal factum filed with the Federal Court of Ap- peal had cast a doubt over his neutrality. "It is not my habit to review the factums filed in the Federal Court of Appeal in respect of my decisions," wrote Boyle, who noted "prominent tax lawyers" and a colleague on the court had sent him McKesson Canada's factum. But after seeing it, he said he had to ask wheth- er "a reasonable person reading the factum, my reasons, and the relevant portions of the tran- script would believe that the trial judge so strongly complained of by McKesson Canada might not be able to remain impartial in his consideration of costs and confidential information." What many lawyers find extraordinary is that in the 45-page ruling, Boyle went on to respond in detail to statements McKesson Canada made in its appeal, some of which he said he was "deep- ly troubled by." "For these reasons, it is my view that the appel- lant has wrongly accused me of being untruth- ful, dishonest and deceitful. I am simply unable to read their factum or the reasons any other way on this point. I believe they have wrongly writ- ten these things in the appellant's factum about me intentionally under the guise of fearlessly ad- vancing and representing the interests of McKes- son Canada. I believe this clearly crosses the line as to what is appropriate," wrote Boyle. He added: "I am satisfied that a reasonable fair-minded Canadian, informed and aware of all the issues addressed above, would entertain doubt that I could remain able to reach impartial decisions. I believe that such a reasonable fair-minded and informed person, viewing this realistically and practically would, after appropriate ref lection, be left with a reasoned suspicion or apprehension of bias, actual or perceived." It's very unusual for a judge to comment on the merits of an appeal factum filed in a case he already tried, says MacKenzie, who's also the au- thor of a book on professional responsibility. Civil litigation Time for Ontario to eliminate jury option P6 FOCUS ON IP/Trademark Law P8 It's unusual for a judge to comment on the merits of an appeal factum filed in a case he already tried, says Gavin MacKenzie. Photo: Robin Kuniski See Time, page 5 See Judge, page 5 Solicitors' representation among elected benchers at the Law Society of Upper Canada is low compared to their numbers in the legal profession. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $4.00 • Vol. 25, No. 30 September 22, 2014 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES I W PrivaCy dilemma Can RCMP hand criminal file to law firm? P2

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