Law Times

November 10, 2014

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Judge's surprising recusal prompts bid for new trial BY JUlIUS MElNITZER For Law Times n another bizarre twist to what litigation lawyers have called an "unprecedented" case, counsel for McKesson Canada Corp. are now relying on Tax Court of Canada Justice Patrick Boyle's re- cusal from a transfer-pricing case in September as grounds for seek- ing a new trial. Last week, McKesson Canada's lawyers filed a motion seeking to amend the company's notice of appeal by adding an additional ground alleging Boyle's reasons for recusal, which received exten- sive media coverage, "interfere with the fairness of the appellate process and compromise the ap- pearance and fairness of both the trial and appeal." The Federal Court of Appeal has yet to determine whether it will allow McKesson Canada to amend its notice of appeal. "It's impossible to tell what im- pact this will have on the appeal," says Gavin MacKenzie of Davis LLP's Toronto office. McKesson Canada Corp. v. Her Majesty the Queen is a transfer- pricing case about adjustments in- volving McKesson Canada and its parent, McKesson International Holdings. In 2013, Boyle ruled in the gov- ernment's favour but remained seized of costs and confidentiality issues. Before he could determine those issues, McKesson filed an appeal. The appellant's factum found its way to Boyle, who saw its tone, if not its substance, as offensive. More particularly, he cited the following three passages from the factum: • "In these circumstances, I am deeply troubled by the state- ment by the Appellant in para- graph 89 of the Factum that '[t] he Trial Judge did not, in fact, leave this question for another day, as he claims to have done.'" • "I am similarly deeply troubled by the statement by the Ap- pellant in paragraph 84 of the Factum that '[t]he Trial Judge, without acknowledging it, has challenged whether the written terms of the Agreement ref lect- ed the 'real' allocation of risk between MIH and McKesson Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation )BSECPVOEȕ1VCMJTIFE'FCSVBSZFBDIZFBS 0OTVCTDSJQUJPOȕ- 0OFUJNFQVSDIBTFȕ- .VMUJQMFDPQZEJTDPVOUTBWBJMBCMF 1SJDFTTVCKFDUUPDIBOHFXJUIPVUOPUJDF]UPBQQMJDBCMFUBYFTBOETIJQQJOHIBOEMJOH CANADIAN LAW LIST 2014 :063*/45"/5$0//&$5*0/50$"/"%"Ȏ4-&("-/&5803, ȕ BOVQUPEBUFBMQIBCFUJDBMMJTUJOH ȕ DPOUBDUJOGPSNBUJPO ȕ MFHBMBOEHPWFSONFOUDPOUBDUJOGPSNBUJPO .03&5)"/"1)0/�, CLLdir_LT_Oct6_14.indd 1 2014-09-30 9:25 AM Are law libraries still relevant? System important but time to modernize it, lawyers say BY YAMRI TADDESE Law Times lans are underway to review the province's law libraries for the first time in 15 years with the goal of modernizing them. Stakeholders of LibraryCo Inc., the non- profit organization that runs Ontario's law libraries, want to bring law libraries up to speed with technological changes that have transformed both the practice of law and the way people consume legal infor- mation. "[The system] hasn't been looked at in 15 years and in 15 years, think of how the Internet alone has changed the world. Information services in all aspects have changed substantially," says Cheryl Siran, chairwoman of the County & District Law Presidents' Association, one of the stakeholders of LibraryCo. "It's time to look at [the system] because changes necessarily have to fall from that and it's time for us to modernize it," she adds. The Law Society of Upper Canada, another stake- holder of LibraryCo along with the Toronto Lawyers Association, allocated $7.7 million to law libraries in its 2015 budget. That comes to a fee of about $200 per law- yer annually, which is on par with what members paid for libraries this year. But the law society is also acknowledging the need for change at law libraries. "The library system is an integral component of the law society's mandate to ensure licensee competence. Its services and their delivery should, therefore, be focused on best practices, particularly as it relates to the devel- opment of legal research literacy and skills and lawyer and paralegal competence," the law society said in a brief report last month on the evolution of law libraries in Ontario. "The current system has not been designed to ad- vance this systemic approach or to provide education and training to encourage lawyers and paralegals to ac- complish these competence goals." But in the age of the Internet and electronic access to legal information, are law libraries still relevant? "Absolutely," says Siran, who notes technology isn't "the saviour of all research" and libraries aren't just "re- positories for books." Libraries across Ontario serve as practice resource centres that are especially indispensible for those who practise on their own or at small firms, according to Siran. While lawyers at big law firms may have access to electronic legal research services like Westlaw Canada, Siran says that may not be the case for those with small- er practices. "If they are not available to every lawyer, then we are putting the public at risk. We are creating a problem for access to justice because a lawyer can't necessarily af- ford that." She adds: "The reality of a solo and small firm is that it is more difficult for you to pay for those services be- cause they're very expensive and so having them uni- versally available for the library system is still going to be the best way to get them out to every lawyer across the province." Joseph Neuberger, president of the Toronto Lawyers Association, says law libraries located in courthouses serve as remote offices for lawyers. Those services "remain as WEB-BASED TERAVIEW New director of titles has big plans P3 BILINGUAL SERVICES SCC ruling, Ottawa attacks show major gaps P6 FOCUS ON Labour & Employment Law P8 Courthouse law libraries serve as remote offices for lawyers, says Joseph Neuberger. Photo: Robin Kuniski See Ruling, page 2 See Information, page 2 Gavin MacKenzie believes the Court of Appeal would 'take a dim view of the trial judge interfering in the appeal process.' PM #40762529 WEB-BASED TERAVIEW New director of titles has big plans & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $4.00 • Vol. 25, No. 36 November 10, 2014 e: ssoil@docudavit.com www.docudavit.com Closed File Storage SAVE YOUR FIRM MONEY With Our Secure and Cost Effective, Easy to Access Closed File Scanning & Storage Solutions. Call Us, We Will Help You! ntitled-1 1 2014-10-21 8:13 AM L aw TIMEs L aw TIMEs I P

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