Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ..........Tim Shufelt Staff Writer ............. Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 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 Inc. 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 Funding for defamation cases close to crossing line S everal recent cases in Ontario have raised the issue of how gov- ernments officials handle defa- mation lawsuits. A case that has drawn considerable scrutiny is that of Toronto Coun. Adrian Heaps, the defendant in a defamation lawsuit dating back to the time he was a candidate for city council. The city's plan to cover his legal bills in the case will come before council again later this month as anger over the payout grows. Part of the controversy centres on the fact Heaps wasn't even a sitting councillor at the time of the offence. But elsewhere, municipal councils are funding defamation litigation in simi- larly contentious circumstances. In Wellington County, for example, the municipality is covering the legal bills for an action launched by the mayor of Puslinch, Ont., Brad Whitcombe, and county chief administrative officer Scott Wilson. That move prompted the Canadian Civil Liberties Associa- tion to intervene in a bid to dismiss the case. It argues paying the two of- ficials' legal costs amounts to an effort to circumvent legal prohibitions on governments from suing for libel. In Toronto, the same questions came up last year when Coun. San- dra Bussin sought city money to help her with a defamation case she had launched. Now, dissent over the Heaps affair has prompted a legal challenge by the fledgling Toronto Party against the politicians who voted to pay him. It's clear, then, that the issue has become a messy one for municipal councils. In the case of politicians, it's fairly ob- vious that paying their legal bills to sue members of the public represents a threat to free speech. Defending city councillors who face lawsuits over actions they take in the course of their duties is one thing, but funding cases they themselves un- dertake is another. After all, they should expect legitimate criticism from the public and, if it's unfair, they have plenty of venues and resources for rebutting it. If that's not good enough, they can pay for the litigation themselves. More difficult, however, are cases such as the Wellington County one. One of the plaintiffs there is a bureau- crat who, it's arguable, should receive some legal protection from libelous comments. The allegations, a recent judgment in the dismissal motion not- ed, include innuendos of criminal be- haviour on behalf of the plaintiffs on a local web site called smelly-welly.com. In response to the CCLA interven- tion, the motions judge ruled there was insufficient legal authority to dismiss the case over the county fund- ing. But it's time the courts, or Queen's Park, dealt with the issue. Beyond the fact that one of the plaintiffs in the case is a politician, the county's move could have an ulterior motive of try- ing to silence dissent under the guise of helping two of its officials with a le- gal issue. For his part, the judge noted those questions might come out at tri- al. Hopefully, that happens given the ongoing controversies. Certainly, defending public officials in court over matters related to their duties is legitimate. But funding the lawsuits they themselves initiate comes dangerously close to crossing the line. As a result, it's time for a thorough discussion on when it's appropriate to pay for public officials' legal bills in defamation cases. — Glenn Kauth H Legal aid's long march from donation to bargaining That's ow did we get to the point where the crim- inal defence bar is on strike? Defence lawyers can't afford to take cases at legal aid rates, they say, explaining why they have withdrawn their services. It's a classic collective bar- gaining situation, and that means legal aid has come a long way in 60 years. Legal aid started off strictly as charity. For a long time, lawyers, who were generally well-paid, could afford to donate their skills now and then, which they often did. Judges who saw a defendant in need of counsel would put in a word to a lawyer they respected, and the deal was done. Pro bono was the heart of the original, in- formal legal aid regime. That system proved insuffi- cient to a growing, more urban- ized Ontario. In 1950, the Law Society of Upper Canada estab- lished a central referral service for every county and district in the province through which the needy could find counsel. LSUC's 1950 system still depended on charity. Many young lawyers found legal aid a useful practice builder, believ- ing that once they started to win some cases, paying clients would soon find their way to their door. But they were entirely unpaid. Legal aid still depended on the spirit of volunteerism and enthusiasm of the bar. Paid legal aid came along in 1967. It was the era of big social programs: employment insur- ance, social security, pension re- form, public health care, and le- gal aid. Finally, the government would ante up for legal counsel. In 1967, however, the bar was as resistant to a government takeover as the doctors were. In their case, however, the lawyers were more successful. The gov- ernment put up the money, but the LSUC retained control of the legal aid program. There would be no government-run legal aid History By Christopher Moore system and no public defenders. The quid pro quo for lawyers' continuing control over the sys- tem was the ongoing charitable element. LSUC's legal aid plan never paid full fees to lawyers who worked under it. Eventu- ally, the law society even im- posed a levy on lawyers to help cover the cost. Almost uniquely among public social programs, the service providers themselves continued to cover part of the cost of legal aid. "You cannot sell legal aid by the yard," said former trea- surer John Arnup when the paid program began. Legal aid had to be open-ended, he said, driven by demand for counsel and not by what governments www.lawtimesnews.com were willing to pay. But open-ended budgets provoked 30 years of push and pull between govern- ments that fought to contain expenditures and a lawyer-run plan tasked with providing as much legal aid as necessary. LSUC-run legal aid went through several funding crises, the most serious in 1994. When a four-year compromise deal ran out, the government established Legal Aid Ontario. As long as lawyers ran legal aid, those who complained about the fees found them- selves fighting their colleagues while governments watched. The creation of LAO a decade ago finally cut out the interme- diary. Legal aid lawyers had a clear target. LAO is independent but it is publicly funded and publicly ac- countable. To a lot of lawyers, it is either the government or close enough. All they needed was a way to organize the bar. January 18, 2010 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Enter the Criminal Lawyers' Association, founded by a group of leading counsel in 1971. Le- gal aid issues had always con- cerned the CLA, which gradu- ally rallied much of the defence bar behind it. Finally, in mid- 2009, it launched an informal kind of collective bargaining. It successfully urged most lawyers to boycott legal aid certificates for trials and appeals in certain major crimes. All it wanted was more money. Legal aid has moved forward through a series of compromis- es, and it's still hard to imag- ine formal labour-management bargaining between lawyers and LAO. But the history of legal aid seems to have been trending that way for half a century now. Here it comes. LT Christopher Moore's most recent book is McCarthy Tétrault: Building Canada's Premier Law Firm. His web site is www. christophermoore.ca.

• Cover
• Feeling The Pain
• Bargaining Legal Aid
• Focus On Real Estate Law