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August 8, 2011

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PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Why we need lawyers L awyers worried about long- standing mistrust of the legal profession got some help from two academics last week. A new study by Queen's University Faculty of Law professor Nicholas Bala and University of Western Ontario so- cial work professor Rachel Birnbaum showed the value of having lawyers in a family law case. Th e pair surveyed 325 family lawyers about their experiences dealing with unrepresented litigants on the other side. Besides fi nding that the other side had no lawyer at all in a quar- ter of family law cases, the study noted concern about increased costs for the party that did have representation. Th e added costs are due to a num- ber of complications largely stemming from the fact that one party is less fa- miliar with the justice system. As a re- sult, the lawyer involved has to spend more time on documentation with an- other party who may have unrealistic expectations and whose actions may drag out the litigation. Of course, people often go unrepre- sented simply because they can't aff ord a lawyer. But it's ironic that an eff ort to save money can actually end up costing another party more. It's interesting, too, that avoiding high-priced lawyers can result in a fi nancial burden. Th at won't surprise many in the profession, but it's good to have academic proof of that fact. Th e study, then, is good evidence of why people need lawyers. Still, that only goes so far as it doesn't answer the ques- tion of how to help ensure people can aff ord representation. "Bar associations and governments are certainly aware of the problems created by lack of legal rep- resentation for family litigants and ulti- mately their children," said Bala. "But present fi scal realities make these diffi cult issues to address. Th ere is no single or simple solution to these problems, but it is clear that the challenges posed by fam- ily litigants without lawyers need to be better understood and addressed." Without more money for legal aid, possible solutions include doing more to facilitate the unbundling of legal ser- vices and, more controversially, allowing paralegals to practise family law again. At the same time, there's some hope that new family law information sessions and making mediation more widely available may help to some degree. Each of those actions, of course, would make only a small diff erence to the problem. But through their study, Bala and Birnbaum have highlighted the need to consider the issue of unrep- resented litigants in family law more fully. In doing so, they've also shown people why they need lawyers. — Glenn Kauth T Caledonia dispute continues despite $20M settlement The he Ontario government announced recently that it had settled, for a lump-sum payment of $20 million, the class action law- suit brought against it for its alleged failure to provide poli- cing to the town of Caledonia, Ont., during a First Nations land dispute in 2006. Historians know Caledonia as a small community inside the Haldimand tract, a strip of land that runs along either side of the Grand River and was granted by Frederick Haldimand, as govern- or general of what was then still known as the province of Que- bec, to the Mohawk nation at the end of the 18th century. Be- fore 2006, many non-historians knew Caledonia as a growing bedroom community outside Hamilton and within commut- ing distance from Toronto. Caledonia grabbed headlines in 2006, however, when First Na- tions protesters seized the Doug- las Creek Estates, a 28-hectare residential development in Cal- edonia that, if developed, would have brought up to a thousand new homes to the area. Th ey es- tablished armed roadblocks in and out of the subdivision and began charging development fees to builders throughout the Haldimand tract while requiring residents to recognize Six Nations jurisdiction and authority over their properties. Th e occupation of the Douglas Creek Estates, now renamed Kanonhstaton by the First Nations, continues to this day, although the fee simple has since been purchased by the province. Th ere doesn't appear to be any argument over the lawless- ness that then ensued in the area after the dispute began. Argyle Street, the main road into the subdivision, was closed to traf- fi c after protesters barricaded it with a downed hydro tower and a jackknifed transport truck. Caledonia lost its electricity supply after the transformer station servicing the area was destroyed during the 2006 Vic- toria Day weekend. At the same time, hundreds of tires were lit ablaze as cars were thrown off the Highway 6 over- pass. In addition, two local TV crew members were hospitalized after being attacked by protest- ers annoyed at their news cover- age. Th ere was also an incident in which two Ontario Provincial Police offi cers were physically seized by protesters and wrested Dirt By Jeffrey W. Lem from their car, which was then used to try to run them over. During the protests, local cit- izens had to apply for passports from the Six Nations before pass- ing checkpoints approaching the disputed lands. In the meantime, a local builder and his nephew were both badly beaten. Th ese accounts of the events come from a variety of newspaper articles from 2006, but much of the real drama that was and, to a certain extent still is, life in Caledonia has been chronicled in Christie Blatchford's Helpless: Caledonia's Nightmare of Fear and Anarchy, and How the Law Failed All of Us. Even if it can be said that such violence and destructiveness are to be expected or can't reasonably be avoided in the case of spon- taneous civil unrest, what was ultimately at the root of the class action litigation was the apparent unwillingness of the police to do anything over a prolonged period www.lawtimesnews.com of time to prevent the lawlessness. In fact, aside from a failed police raid in 2006, almost every main- stream media source, irrespective of political bent, concluded that the OPP stood idly by observing the lawlessness but refused to act even when they were otherwise in a position to protect citizens and property and assert the rule of law. Th e settlement of the class action lawsuit follows the reso- lution in late 2009 of a similar high-profi le matter brought by Dave Brown and Dana Chatwell, who owned a house and busi- ness on Argyle Street. Th e Brown and Chatwell civil lawsuit against the OPP and the Ontario gov- ernment sought damages of $7 million along with an apology. Although the settlement amount in the Brown and Chatwell litiga- tion remained confi dential, the National Post quoted Michael Bordin, one of the lawyers for the plaintiff s, as confi rming that the family "is pleased with the settle- ment and look forward to put- ting this diffi cult episode behind them. Th ey are satisfi ed that this has been resolved and now want to move on with their lives." Although the class action settlement benefi ts some 800 August 8, 2011 • LAw times Thomson Reuters Canada Ltd. 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ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, One Corporate Plaza, 2075 Kennedy Rd., Toronto ON, M1T 3V4 or call Karen Lorimer at 647-288-8018 karen.lorimer@ thomsonreuters.com, Kimberlee Pascoe at 905- 841-6480 Ext. 4052 kimberlee.pascoe@thomson reuters.com, or Sandy Shutt at sandra.shutt@ thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. local business and property owners, there are remaining civil claimants who, like Brown and Chatwell, pursued independent litigation. But presumably, the settlement of the class action matter brings some sense of clos- ure to the litigation that followed the Caledonia uprising. Ironically, the land claim itself isn't settled but that, too, may be coming to a conclusion soon. On July 31, the Toronto Star reported that Ottawa intends to cut off ne- gotiations in certain claims that have been on the books for three years or more and off er take-it- or-leave-it deals. Th e Caledonia dispute wasn't specifi cally men- tioned in the article but it falls within the types of land claims that might now be targeted for expedited settlement by the fed- eral government. Still, there's no telling wheth- er such an off er would be accept- able to the First Nations. What is certain, however, is that Cal- edonia continues to grab head- lines well after the 2006 occu- pation that started it all. Jeff rey W. Lem is a partner in the real estate group at Davies Ward Phillips & Vineberg LLP. His e-mail address is jlem@dwpv.com.

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