Law Times

PAGE 2 NEWS apriL 12, 2010 • Law Times Clinics sounding alarm on resource office cutbacks LAO service facing possible merger following success in special diet case BY MICHAEL McKIERNAN Law Times B udget cuts at Legal Aid Ontario's clinic resource offi ce will cripple clinics' capacity to defend the poor, law- yers and experts fear. Earlier this year, LAO, facing a defi cit of $46.7 million for 2009- 10, eliminated two lawyer posi- tions at the resource offi ce and made cuts to its barrister service. Now, a rumoured merger with LAO's general research arm has raised fears the offi ce will eff ec- tively disappear altogether along with its expertise in poverty law, an area advocates say is already under-served by the profession. It's a prospect that has Os- goode Hall Law School profes- sor Mary Jane Mossman con- cerned. "It seems to me that this decision must be being made by people who don't actually un- derstand what it is that clinics are doing because it's not exper- tise you can fi nd in other law of- fi ces, that's for sure," she says. Mossman notes the resource offi ce compensates for the ab- sence of literature on clinic law by pooling research materials for all organizations. Th at's be- cause it maintains databases of tribunal decisions and provides updates on constantly changing regulations in areas such as social assistance, landlord-and-tenant law, and refugee claims. "It's an effi cient and eff ective use of scarce resources. By using just a few staff members at [the re- source offi ce], they're making sure that 79 clinics across the province committee at the Law Society of Upper Canada, says cuts to the resource offi ce could actually decrease effi ciency in the system as clinics pick up the slack along with a negative eff ect on the qual- ity of service clients can expect. "It puts additional pressure 'You ask any litigator if they can hold down a busy practice in half time, and it's very diffi- cult,' says Kate Stephenson. have access to unreported deci- sions that are simply not available anywhere else," Mossman says. In a statement, LAO spokes- man Kristian Justesen denied the resource offi ce is under threat but didn't rule out a merger with the general research arm. LAO, he noted, "is always open to explor- ing opportunities that would lead to administrative effi ciencies." He added: "Changes to the [re- source offi ce] budget are part of a larger LAO-wide modernization strategy launched several years ago to reduce administrative costs and improve services and access for clients. Th e revised [resource offi ce] budget remains substantial at $1.7 million for 2010-2011 with a staff complement of 12.6 full-time equivalent staff ." But Ian Blue, a lawyer at Cassels Brock & Blackwell LLP who once worked as an admin- istrative law mentor to law clin- ics and sat on the clinic funding on each of the legal clinics to provide those services and takes away their ability to spend time with their main clientele, which is the disadvantaged in the city and throughout the province," he says. "It really is a retrograde step." Sally Colquhoun, a lawyer at the Kinna-aweya Legal Clinic in Th under Bay, remembers using LAO's general research arm for clinic research in the 1980s and shudders at the thought of doing so again. She says lawyers in her organization use the resource offi ce every day for researching decisions, communicating with colleagues in other clinics, and even training in clinic law. "Th e clinics developed the [re- source offi ce] because there was nothing like it, and we needed it," she says. "It's hard to imag- ine now how we could practise without it and how much of our time it would waste." Colquhoun says she makes ap- peals to the Divisional Court and the Federal Court of Appeal every year that simply wouldn't be pos- sible without the resource offi ce. "Even though we're a small, over- worked general service clinic, we can do that because we get help in writing factums and research from the [resource offi ce]." Walter Van de Kleut, chairman of the Association of Legal Aid Lawyers, is concerned about an- other proposed change to the way the resource offi ce operates. LAO has indicated it will impose its "lawyer workforce strategy" on resource offi ce staff . Th e strategy, already in place elsewhere, rotates lawyers through diff erent depart- ments after no more than two years, a move Van de Kleut says will turn staff into commodities and make clinics less eff ective. Th e resource offi ce's bar- rister service was hit hard by budget cuts announced earlier this year by LAO. Kate Ste- phenson, a former barrister at the resource offi ce, argues the cuts will have an impact on the quality of service clinics can of- fer. "You ask any litigator if they can hold down a busy practice in half time, and it's very diffi - cult," she says. Stephenson notes the barrister service opened up a new avenue for clinic lawyers to bring com- plex systemic litigation forward. Th e barrister can act as a sound- ing board for those needing ad- vice on litigation matters and can even go as far as appearing in court in support of clinics. In February, the Human Rights Tribunal of Ontario, in a case litigated by the resource of- fi ce on behalf of clinic clients, ruled the province's special diet allowance violated the Human Rights Code. It's in those types of cases that the offi ce is particularly useful, Stephenson says. "Some cases are too big for any one clinic to take on without it overwhelming the work of the clinic. So the barrister can act as counsel alongside a clinic to make cases happen, and those cases tend to aff ect lots of clinic clients." LT Timing could be key Continued from page 1 legal services to the co-ownership around 1999 after Macarz suggested it because of his family's long relationship with the fi rm. But in hindsight, they allege Macarz "introduced Fogler as the solicitors to the co-ownership to secretly learn about the co-ownership and its principals." Since they launched their action against Philmor in 2003, the Valelas accuse Denis of making "exaggerated and outra- geous claims" in open court. "Dale Denis counselled Philip Macarz to allege fraud against Joe Valela personally," the brothers allege, adding it was an "abusive breach of trust and confi dentiality for him to champion off ensive allegations that concern Fogler's own clients' internal business dealings pre-2003 when it was pur- porting to be acting for the co-ownership." During the course of the litigation between the two com- Ontario Family Legislation 2010 Ontario Family Legislation is an annual consolidation of statutes and regulations most frequently used in family law in Ontario. Gain full access to: • • • • • • • and regulations • • ORDER your copy today Perfectbound • 918 pp. • April 2010 On subscription $76 • P/C 0823140000 One time purchase $86 • P/C 0823010000 Multiple copy discounts available ISSN 1198-211X • • regulations • • • and regulation and regulation • Spousal Support Advisory Guidelines and regulations and and regulations, including panies, Philmor was able to take control of the Valemont Group's interest in the Bloor Walk development in exchange for a $5.5-million bond posted in court so that the fi rst phase of the development could go ahead with a diff erent partner. But in the new statement of claim, the Valemont Group is seeking $25 million in damages against Fogler Rubinoff to cover its legal costs, lost project-management fees and profi ts, and $1 million in punitive damages. None of the allegations have been proven in court. Simon Chester, a partner at Heenan Blaikie LLP with ex- pertise in legal confl icts of interest, says the rules on joint retainers may apply to co-ownerships because there is a lack of law on co-owner representation. Th e Law Society of Upper Canada allows lawyers to work for more than one client in a matter as long as they both un- derstand they have retained them and that "no information received from one party on the matter will be kept confi den- tial from the other," Chester says. But when a confl ict arises, the clients must understand that the lawyer "may not be able to act for either or both of them and may have to withdraw completely," he adds. "On a co-ownership, one may say, 'Let's just use my law fi rm,' and that's absolutely fi ne as long as the other party re- alizes that it's my law fi rm and they understand the ground rules as it proceeds." Chester notes the Canadian Bar Association strongly rec- ommends that law fi rms have retainer letters and even goes as far as suggesting "I-am-not-your-lawyer" letters designed to clear up misconceptions when more than one person meets with a practitioner. "Th e case may turn on whether Fogler actually had a re- tainer letter that said who the clients were and to whom the duties were owed," Chester points out. However, Chester notes that Denis and Fogler Rubinoff have represented Philmor at least since 2004, a fact that may work against the Valemont Group. "One thing you have to do is to act on your knowledge in LT0412 For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Ontario Family Legislation (LT 1-4x3)).indd 1 www.lawtimesnews.com 4/6/10 12:13:44 PM a timely fashion. You can't sit on a confl ict and then bring it up years later." LT Consulting Editor: Elliot S . Birnboim Change Child Children's Divorce of Family and Name Reform S Act ervices Support Law Act Act Family Guidelines Law Act Family Law Family Act Federal Act Child Orders Family Rules Act, Fraudulent Responsibility Adoption 1996 and Agreements and Intercountry Interjurisdictional Marriage Conveyances Enforcement Support Assistance Arrears Enforcement Support Act Partition Act Pension Act 1998 Act, Orders Act, 2002 Benefits Division Act

• Cover
• Clinic Cutbacks
• Building Boom
• Focus On Class Actions