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April 18, 2011

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Follow Billions of dollars invested, not a penny lost. www.twitter.com/lawtimes ntitled-3 1 $4.00 • Vol. 22, No. 145/4/10 2:49:21 PM Inside This Issue 3 Alleged Discrimination 6 Troubled System 9 Focus On IT/Telecommunications Law Quote of the week "It's good to see that Bell is willing to move, and it's good to see that they have basically admitted that the fees that they were trying to apply to wholesalers and indie ISPs was inappropriate." — Steve Anderson, executive director of OpenMedia.ca See Bell's, page 11 Covering Ontario's Legal Scene Untitled-3 1 April 18, 2011 on 5/5/10 3:55:30 PM Will harassment case deter complaints? LSUC counsel worries storm at Toronto firm could send chill BY MICHAEL McKIERNAN Law Times the Law Society of Upper Canada's discrim- ination and harassment counsel fears the storm at another fi rm, Mathews Dinsdale & Clark LLP, could deter future complain- ants from bringing their concerns forward. David Cowling, then a partner at Mathews A Dinsdale, eventually sued two associates for defamation after they accused him of inap- propriate sexual conduct in the wake of a wild open-bar party to celebrate the end of a labour arbitration moot competition in 2009. Cowling has since dropped the defamation action, which he says was necessary to protect his reputation, and left the fi rm earlier this month with compensation and a declaration from the managing partner that he had con- ducted himself "appropriately and acted at all times during the weekend of the competition in an appropriate and professional manner." But Cynthia Petersen, who accepts anon- ymous complaints from people who believe law society members have harassed or dis- criminated against them, says the public glare attracted to the case following the launch of the lawsuit could deter potential complain- ants, many of whom are already reticent, from making their concerns known. "Th e defamation action that was brought 'The defamation action that was brought by the alleged harasser in that case could certainly have a chilling effect on people making complaints,' says Cynthia Petersen. However, she also says it's important to re- by the alleged harasser in that case could cer- tainly have a chilling eff ect on people making complaints," Petersen says. member that it's rare for a complaint to have such public repercussions for the complainant. "I understand the fear that people experience, especially if they're relatively junior in the s Osler Hoskin & Harcourt LLP confi rms a sexual discrimination claim against it has been resolved, hierarchy of their employment," Petersen says. "Th ey feel vulnerable, and I don't want to be dismissive of that vulnerability. But I certainly don't want people to be so fear- ful that they don't assert their rights. I try to help people feel empowered and not be afraid of any negative repercussions." Beth Symes, who represented Sarah Diebel, the second-year associate whose complaint sparked the furor at Mathews Dinsdale, says her client should have had protection from a defamation action by qualifi ed privilege because she followed the rules set out in the fi rm's sexual harassment policy. She also worries about a chilling ef- fect for women in similar situations. "Often in such situations, the woman has either been forced out or has withdrawn from that work situation, so she lacks the means to mount a defence," she says. "In this case, it's been very expensive to the two young lawyers involved and not just out of pocket. Th ey've both left the fi rm under very diffi cult circum- stances, and that's a very high price to pay." Diebel resigned from Mathews Dins- dale in June 2009, while Adrian Jakibchuk, the second defendant in Cowling's lawsuit, was still working for the fi rm when he was served with the claim in March 2010. He left the fi rm two months later and has now launched his own lawsuit against it alleg- ing wrongful dismissal. Mathews Dinsdale denies the allegations, which have not been proven in court. Th e mess at Mathews Dinsdale isn't the only recent high-profi le run-in for a Canadian See More, page 4 U.K. ruling spurs debate on expert immunity C BY JULIUS MELNITZER For Law Times anadian lawyers are di- vided over the effi cacy of a British Supreme Court judgment that abolishes a 400-year- old rule granting expert witnesses immunity from suit over their par- ticipation in legal proceedings. "Jones v. Kaney represents a very drastic move on the court's part, and I don't think Canadian courts are predisposed to follow," says San- dra Forbes of Davies Ward Phillips & Vineberg LLP. But Erik Magraken of MacIsaac Sandra Forbes believes Canadian courts may narrow the scope of immunity for witnesses. TitlePlus_LT_Mar9_09 2/27/09 11:23 AM Page 1 & Co. in Victoria disagrees. "Th e decision is a welcome development from the perspective of accountabil- ity," he says. "Being an independent expert can be lucrative and plays an important role in our system. And while most witnesses are fair, there's not a lot of disincentive to rein in careless opinion if someone chooses to be intellectually dishonest." Jones involved a claim against a consultant clinical psychologist who had prepared an expert state- ment in the context of a personal injury dispute. Th e plaintiff alleged the expert had acted negligently in preparing the statement and that the claim had settled for a much lower fi gure than it would have otherwise. Th e High Court, relying on the rule of expert immunity, struck the claim. But the Supreme Court abolished the rule by a 5-2 major- ity. It reasoned that there was no justifi cation for maintaining im- munity considering that the House Together we have all the tools To ensure your clients get the most comprehensive coverage in one title insurance policy, take a look at the TitlePLUS Program , your Bar-related real estate partner! 1 ® PROTECTION AS GOOD AS IT GETS 1-800-410-1013 ® TitlePLUS, the TitlePLUS logo, OwnerEXPRESS and LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ® BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. titleplus.ca 1 Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®). Contact LAWPRO for brokers in Saskatchewan, Manitoba, Alberta and Québec. TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS® policies do not include legal services coverage. ® of Lords had earlier abolished such protection for advocates in its deci- sion in Hall v. Simons. As the court saw it, the primary rationale for the immunity was the concern that an expert witness might be reluctant to give evidence against a client's interest and in breach of the duty to the court if there was a risk of suit. As was the case with lawyers, there was no confl ict between the expert's duty to the client and the duty to the court. Nor was there ev- idence that the immunity was nec- essary to secure an adequate supply of expert witnesses as the abolition of the rule protecting advocates had had no such impact. But Barry Leon of Ottawa's Per- ley-Robertson Hill & McDougall See Immunity, page 4 LT Digital version.indd 1 6/25/10 12:59:47 PM Click here to subscribe today to LAW TIMES www.lawtimesnews.com

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