Law Times

August 8, 2011

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416-487-4447 • ADR Connect: Find an ADR Professional Arbitrators $4.00 • Vol. 22, No. 25 ntitled-2 1 7/7/11 9:10:05 AM Inside This Issue 3 Project Management Covering Ontario's Legal Scene ntitled-1 1 Mediators August 8, 2011 7/5/11 9:40:55 AM Groia defends 'forceful advocacy' But lawyer's actions almost unprecedented, LSUC alleges BY MICHAEL McKIERNAN Law Times 6 M Caledonia Settlement 9 Focus On Corporate/ Commercial Law Quote of the week "Fifteen years ago, the big Canadian banks tended to look alike. But now, there's an ongoing trend towards enhanced specialization in which institutions are looking at their areas of strength and focus and dedicating capital to them." — Barry Ryan, McCarthy Tétrault LLP, See Canada, page 11 ore than 12 years after his fi rst court appearance defending for- mer Bre-X Minerals Ltd. vice chairman John Felderhof, Joe Groia's disci- plinary hearing fi nally got underway at the Law Society of Upper Canada last week with his lawyer fending off allegations of incivility by arguing that forceful advocacy was neces- sary during the long-running case. Felderhof, who was also chief geologist at Bre-X, was facing accusations by the Ontario Securities Commission of insider trading and issuing false or misleading statements over his sale of $83-million worth of shares in the company. Th e share price rocketed after Bre- X reported the discovery of gold deposits in Indonesia, but those claims turned out to be false. A 160-day trial spread across fi ve years ultimately acquitted Felderhof in 2007. Th e behaviour of Groia, who was once the OSC's director of enforcement himself, in the hard-fought case came into question after prosecutors moved to have trial judge Peter Hryn removed from it 70 days into the trial in part for his failure to restrain what they saw as the defence lawyer's uncivil conduct. Representing the law society, Tom Curry, a partner at Lenczner Slaght Royce Smith Griffi n LLP, said it intends to rely only on the tran- script of those fi rst 70 days as well as two de- cisions by late Ontario Superior Court justice Archie Campbell and one more by the Ontario Court of Appeal in the case. On Th ursday, he Joe Groia is facing allegations of incivility over his conduct during the John Felderhof trial. recounted various moments of days 10 through 42 while highlighting exchanges between Groia and OSC prosecutor Jay Naster. In one example, Curry emphasized a dis- pute between Naster and Groia about whether or not various documents complied with the disclosure requirements set forth by the Su- preme Court of Canada in R. v. Stinchcombe. Curry quoted Groia as stating at one point that the OSC "is saying they're too busy to comply with Stinchcombe." In his decision, Campbell rejected the Crown's submissions that Hryn had lost ju- risdiction over the trial but chided Groia for his "unacceptable conduct." He noted that at See Bar's, page 4 Are courts cracking down on contempt? A BY SHANNON KARI For Law Times couple from Gravenhurst, Ont., is spending alter- nate weekends in jail this summer after a Superior Court judge imposed a 90-day sentence for civil contempt. Steven Barnes and his wife Maria Barnes were found to have breached repeated court orders since 2007 in ongoing litigation with a Toronto aviation company over an agreement to purchase an $11.7-million private jet. Justice Lois Roberts rejected the couple's request for a con- ditional or suspended sentence and ruled that a custodial term was necessary because of their "utter disregard and contempt" for the court's authority. "It is necessary in the circumstances of this case to bring home to the Barnes the gravity of their mis- conduct," Roberts wrote in her recent sentencing decision in Uyj Air Inc. v. Barnes; Ogilvy Renault v. Barnes. obligated to follow it through," says Jolley, a founding partner of Wires Jolley LLP in Toronto. Th e 90-day intermittent sen- tence, which the Barneses have been permitted to serve on alter- nate weekends so someone is al- ways home to take care of their It is clear from the evidence before me that the Barnes have used the inheritance and trust story to string along and delay the moving parties from trying to enforce their judgments. Karen Jolley, who represents TitlePlus_LT_Feb9/16_09 2/4/09 2:02 PM Page 1 Uyj Air, says there was no choice but to seek a fi nding of civil con- tempt against the couple. "Th ere may not be an economic incentive for the client to pursue beyond a certain stage. As an offi cer of the court, it is my position we are children, is the latest example of what appears to be an increased willingness of Ontario courts to impose jail terms for civil con- tempt. Th is spring, the Ontario Court of Appeal upheld a 14-month sentence against Barry Landen 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! ® ® 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. 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. 1 in Langston v. Landen for not complying with numerous court orders in an alleged multimil- lion-dollar estates fraud. Th e ap- peal court also concluded in the high-profi le contempt case of Chiang (Re) in 2009 that senten- ces of eight and 12 months for a couple that breached numerous orders requiring them to disclose assets weren't excessive. In Chiang, one of several cases cited by Roberts, the Court of Appeal described civil contempt as a necessary "coercive" power to try to obtain compliance with court orders. Th e conduct of the Barneses, which included "dozens of ul- timately broken promises" to pay consent judgments, refusals See Couple, page 4 Click here to subscribe today to LAW TIMES LT Digital version.indd 1 6/25/10 12:59:47 PM Photo: Sandra Strangemore

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