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December 12, 2011

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Billions of dollars invested, not a penny lost. ntitled-2 1 $4.00 • Vol. 22, No. 40 7/7/11 9:10:05 AM Covering Ontario's Legal Scene ntitled-3 1 Rule 20 guidance sparks debate Some call it vague, others say flexibility is necessary BY KENDYL SEBESTA Law Times O ne of the parties involved in a landmark Ontario Court of Ap- peal case on Rule 20 of the Rules of Civil Procedure will be seeking leave to appeal from the Supreme Court of Cana- da, his lawyer confi rmed last week. Already, in fact, several lawyers are cri- tizing the court's guidance on summary judgments as lacking clarity and likely to spark an infl ux of appeals. Lerners LLP partner Brian Radnoff , for example, says the guidance is vague and discretionary. "I think the fi rst ques- tion we have to ask ourselves is, has this new test really expanded the availability of summary judgments as it was intended to do?" he says. "I have serious doubts that it has." But ruling in Combined Air Mechani- cal Services Inc. v. Flesch last week, Chief Justice Warren Winkler declared "a new departure" and "fresh approach" to the interpretation and application of the amended Rule 20 related to summary judgments. Th e government amended Rule 20 last assembled a fi ve-judge panel to hear fi ve appeals from decisions dealing with the amended rule. In a key change, the appeal court panel found that motions judges should ask themselves a specifi c question when determining whether they should send claims to trial. In its view, "the motion judge must ask the following question: can the full appre- ciation of the evidence and issues that is required to make dispositive fi ndings be achieved by way of summary judg- ment, or can this full appreciation only be achieved by way of a trial?" But the guidance falls short for Rad- noff . "It is well written and clear," he says. "However, the test appears to be entirely discretionary. Th at means you could po- tentially see the exact same cases with the exact same evidence, but because the mo- tions judge is looking at everything and has access to everything now, you could get multiple outcomes." According to Radnoff , the appeal January in a series of changes to the Rules. Th e goal was to speed up judicial processes and cut costs by allowing judges to weigh evidence, assess credibility, and draw infer- ences of fact in summary judgment matters. Yet since it's implementation, Winkler wrote in Flesch, "it has become a matter of The appeal court guidance is vague and discretion- ary, says Brian Radnoff. some controversy and uncertainty" with Superior Court judges expressing "diff ering views on this and other interpretative issues raised by the amendments." To create clearer guidelines, the court court's guidance could make it more dif- fi cult to advise clients in summary judg- ment matters. "Now we're going to start having fi ghts about whether or not they can bring their summary judgment motion forward," he says. "It's far from the optimal situation. In the short term, it could create a lot of summary judgments that will be appealed and won't save money, although it may be more eff ective in the long term." See Ruling, page 4 Law firms compete for a good cause M BY KENDYL SEBESTA Law Times cLeish Orlando LLP says it's "very serious" about snagging the top prize in the holiday fund- raiser for the Daily Bread Food Bank this month, adding anoth- er competitor to a nearly decade- old rivalry between Toronto law fi rms looking to raise more than $280,000 for the organization this year. "It's just the right combina- tion between the spirit of giving to a good cause and the energy of the holidays," says John McLeish of the personal injury fi rm. "It has people talking about it all the time and almost everyone in the offi ce has been putting all their energy into it. We're pumped." Th e Daily Bread Food Bank's law fi rm challenge began Nov. 28 and runs until Dec. 19. As the biggest employee holiday fundraiser for the organization, articling students at Blake Cas- sels & Graydon LLP who run the challenge each year are call- ing on law fi rms to surpass the $280,000 they raised last year. "Currently, we have about 40 fi rms competing, which is around the same as it was last year," says Casey Vandeputte, an articling student at Blakes. "Ev- eryone seems pretty excited." In the meantime, fi rms like McLeish Orlando, which is com- peting in the challenge for the fi rst time this year, say they plan on staying ahead of the competition with a series of activities aimed at raising the most money and food possible. "We've divided ourselves into three teams and created an inter- nal competition between them with prizes like days off to the team that donates the most," says McLeish. "We're hoping to raise around $20,000 between us, so around $300 each more or less. We're really excited about this and have been asking every- one we know to donate." But McLeish Orlando isn't the only fi rm using offi ce com- petitions to garner support for the top prize this month, says Kristin Th omas, development offi cer at the food bank. "Some of the law fi rms will do fundraisers and others hold donate this lawyers will December 12, 2011 5/4/10 2:49:21 PM Inside This Issue 2 Return To Roots 7 Religious Guidance 9 Focus On Criminal Law Quote of the week "If an employment contract is frustrated for whatever reason, the employee is not entitled to common law damages." — Sarah Crossley, Norton Rose OR LLP, See Court, Page 5 auctions, dress-down days, 50/50 draws or encourage peo- ple to bring in bagged lunches and the money they would have spent eating out to the Daily Bread," says Th omas. "Th ere are a lot of diff erent ways people get involved." To pass the $280,000 mark year, report the total amount of food and money they've raised each week to Blakes. Articling students will keep a running tab to see how the fi rms compare, Vandeputte notes. Last year, McCarthy Tétrault LLP raised more than $40,000 to win the top prize. "Th eir donations make a big impact and will help take us into See McLeish, page 4 ADR Connect: Find an ADR Professional 416-487-4447 • admin@adrontario.ca Untitled-2 1 Gold Standard LT Digital version.indd 1 6/25/10 12:59:47 PM Click here to subscribe today to LAW TIMES Mediators Arbitrators www.adrontario.ca/findapro.cfm www.lawtimesnews.com 5/20/11 1:11:30 PM PM# 40762529

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