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January 12, 2015

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Galati questions appointment of law prof to appeal court By ShANNON KAri Law Times hould members of the bar who haven't been practis- ing law for some time be eligible to join the bench, including the Ontario Court of Ap- peal? That's one of the questions fol- lowing the recent appointment of a constitutional law professor to the appeal court. The government appointed Grant Huscroft, a law professor at Western University in London, Ont., to the appeal court last month after a nearly 25-year career as an academic in Canada and New Zea- land. He's the first professor, since the appointment of noted jurist Bora Laskin, named directly to the Ontario Court of Appeal in 50 years. Huscroft was called to the bar in 1987 and for five years paid full fees while a lawyer with the provincial Ministry of Labour. Since 2004, after returning to Canada, he has paid 50 per cent of the annual fee, as permitted by the Law Society of Up- per Canada, for members who don't practise law or perform legal servic- es, according to a spokeswoman for the regulator. The federal Judges Act states that to be eligible for an appointment to a superior court, an individual must be a "barrister or advocate of at least ten years standing" at the bar of a province. That provision ex- cludes professors or other members of the bar who don't prac- tise law, according to Toronto lawyer Rocco Galati. "It is reserved for people who are barristers. Otherwise, why would you need a 10-year rule? That is in place for the lawyer to get experi- ence," says Galati. He adds that the French version of the Judges Act refers to "avocats." "An avocat in Quebec is a barrister," says Galati, who successfully chal- lenged the appointment of Justice Marc Nadon to the Supreme Court of Canada and a Federal Court practice that permitted deputy judg- es to preside beyond the age of 75. The Act Respecting the Barreau du Québec, which governs lawyers in the province, classifies law profes- sors who don't practic e as solicitors. They can't assume the title of advo- cate or attorney. Galati says the exact meaning of the section hasn't, to his knowledge, been litigated. But he believes there are also good policy reasons for lim- iting judicial appointments to those with at least a decade in the practice of law. "If a city is hiring a plumbing inspector, would you want them to hire someone who had never done any plumbing?" asks Galati. The eligibility requirement in the existing Judges Act uses the exact 2015 ONTARIO LAWYER'S PHONE BOOK THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Perfectbound Published December each year On subscription $77 One time purchase $80 L88804-677 Multiple copy discounts available . Plus applicable taxes and shipping & handling. (prices subject to change without notice) With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: ȕ 0WFS27,000 lawyers listedȕ0WFS9,000 law firms and corporate offices listed ȕ 'BYBOEUFMFQIPOFOVNCFSTFNBJMBEESFTTFTPGȮDFMPDBUJPOTBOEQPTUBMDPEFT 7JTJUDBSTXFMMDPNPSDBMMGPSBEBZOPSJTLFWBMVBUJPO OLPB_LT_Dec8_14.indd 1 2014-12-03 11:56 AM A two-tier system for cross-border practice? Immigration lawyers want crackdown on permits for foreign legal consultants By MiChAel Mc KierNAN For Law Times mmigration lawyers who purchase a permit to practise foreign laws from Ontario are calling on the Law Society of Upper Canada to crack down on violators who ignore the requirement. Eleanor Somerleigh, a corporate immigration lawyer at Rekai LLP in Toronto, pays $250 each year for her foreign legal consultant permit as required by LSUC Bylaw 14. In addition to her membership with the LSUC, Somerleigh is also a qualified lawyer in the U.S. state of Colorado. To get her permit, the LSUC requires her to take out matching insurance for her U.S. matters, which costs an additional $2,700 each year, despite the fact Colorado doesn't man- date professional liability insurance. "I think it's a two-tier system. The rule followers are pe- nalized while the rule breakers are not," says Somerleigh. According to statistics supplied by the law society, Somer- leigh is part of a very select group. Since 2010, it has granted permits to no more than 65 lawyers in any one year. In 2014, there had been just 48 successful applicants by the end of No- vember. Henry Chang, an immigration lawyer with Blaney McMurtry LLP, says that represents an "extremely small per- centage" of those actually practising foreign law in Ontario. "Most just don't bother getting the permit because they know the law society doesn't care," says Chang. "The fact nobody has ever been fined clearly shows they're not looking at enforcement." The provincial Law Society Act empowers the LSUC to prosecute people giving foreign legal advice in Ontario. The offence has a maximum fine of $25,000, but LSUC spokesman Roy Thomas said in a statement he could find no record of it levying any fine. In addition, he said it doesn't track investigations into members suspected of v iolating Bylaw 14 "given that such cases are so uncommon." CARRIAGE DISPUTES Divisional Court to hear Barrick case P5 BUDGETARY BALANCE New taxes likely in 2015 P7 FOCUS ON Insurance Law P8 'The rule followers are penalized while the rule breakers are not,' says Eleanor Somerleigh. Photo: Robin Kuniski See No, page 2 See Foreign, page 2 Justice Grant Huscroft PM #40762529 TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM $5.00 • Vol. 26, No. 1 January 12, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMEs I S

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