Law Times

June 28, 2010

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STORE & SHRED Exceptional Quality at Reasonable Prices! COPY, SCAN, Call us today to fi nd out how much you can Save. TF: 1.888.781.9083 $3.55 • Vol. 21, No. 22 ocdavit_LT_June7_10.indd 1 6/4/10 9:22:44 AM Covering Ontario's Legal Scene ntitled-3 1 Billions of dollars invested, not a penny lost. June 28, 2010 5/4/10 2:49:21 PM SCC reinforces solicitor-client privilege Inside This Issue Ruling makes no distinction between government and private clients BY MICHAEL McKIERNAN Law Times inforced the almost absolute nature of solic- itor-client privilege, according to the lawyer involved in the case. The matter, Ontario (Public Safety and Se- A curity) v. Criminal Lawyers' Association, dealt with the CLA's request, under Ontario's Freedom of Information and Protection of Privacy Act, for an internal police report and documents containing legal advice related to a botched investigation. After reserving its decision for 18 months, the court produced a surprisingly short 7-0 decision recently that some have character- ized as vague. But on the subject of solicitor- client privilege, it was clear and decisive, ac- cording to Mahmud Jamal, a partner with Osler Hoskin & Harcourt LLP who repre- sented the Canadian Bar Association as an intervener in the case. "We were pleased the court reaffirmed its strong and robust protection of the privi- lege," he says. "It talks about the quasi-ab- solute character of the privilege. And there's nothing in the decision that suggests there is a different approach to the privilege merely because the privilege happens to reside with government." Proceedings against two men accused in the 1983 execution-style murder of mobster Dom- inic Racco resulted in a stay of charges in 1997 by Superior Court Justice Stephen Glithero, Supreme Court of Canada ruling that creates a limited constitutional right to access to information has re- publish the report. That move prompted the request by the CLA. The province rejected the request, citing provisions in the act that allow the suppres- sion of documents arising from law enforce- ment investigations and those covered by solicitor-client privilege. The act also contains a "public interest override," but privileged and law enforcement documents don't fall under that clause. The CLA argued that omission breached s. 2(b) freedom of expression rights under the Char- ter of Rights and Freedoms. "What they were proposing was basically an open-ended invitation to violate the privi- lege whenever the so-called matters of great public interest arose," says Guy Pratte, who represented another intervener, the Federa- tion of Law Societies of Canada. An earlier ruling by the Ontario Court of 'We were pleased the court reaffirmed its strong and robust protection of the privilege,' says Mahmud Jamal. who gave a scathing account of the behaviour by the Crown and police in the case. Glithero said almost all evidence that "would have been of benefit to the defence went undisclosed." A subsequent Ontario Provincial Police in- vestigation cleared all of those involved. It found no evidence that police withheld information, but the force provided no details and failed to Appeal agreed with the CLA, but the Supreme Court overturned it. In writing the decision, justices Beverley McLachlin and Rosalie Abella explained that extending the override would have no effect because the province should already have contemplated the public interest when it withheld the documents. "Those sections, properly interpreted, al- ready incorporate considerations of the pub- lic interest," they wrote. In any case, "given the near-absolute nature of solicitor-client priv- ilege, it is difficult to see how the s. 23 public interest override could ever operate to require disclosure of a protected document." Despite the limits imposed, the court con- firmed that the Charter right to freedom of See Provision, page 5 Suspended lawyer turns on counsel in civil suit A BY MICHAEL McKIERNAN Law Times lawyer suspended for incapacity has turned on her own counsel, ac- cusing him of negligence in the hearings that saw her forced to stop practising. In order to defend himself, Kenneth Hughes has now turned to the Law Society of Upper Canada to reverse an in camera order he originally requested on behalf of his suspended client, Tracey Marie Foster. On June 20, 2007, a law soci- ety panel suspended Foster, who was then known by her married name Tracey Marie Resetar, in- definitely "until she provides medical evidence" that she's fit to practise law. The panel acted based on a medical report that found she suffers from a "significant psy- chiatric disorder." As part of the ruling, it sealed the document brief and almost all of the medi- cal report's contents because of their intimate and personal na- ture. But in a statement of claim filed on June 19, Foster is seek- ing more than $10 million from Hughes for alleged breach of contract, breach of fiduciary duty, negligence, loss of income, and loss of reputation. Foster claims Hughes was neg- TitlePlus_LT_Jan12_09 12/23/08 11:07 AM Page 1 ligent through his failure to pro- duce medical reports to counter the one provided to the LSUC and by not cross-examining the doctor whose report was the ba- sis for the suspension. According to Foster's claim, which hasn't been proven in court, Hughes "arrived at the hearing of the applications un- prepared, not having served or filed any documentation or medical evidence in defence of the plaintiff, making it impos- sible for the plaintiff to prevail at the hearing." Hughes coerced her into pro- viding consent, Foster says in her claim, "in essence railroading the plaintiff into an unjust and unsubstantiated finding by the LSUC." But in his statement of defence, Hughes, who maintains he acted on Foster's instructions, says she "consented to the disposition 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 exchange for the law society withdrawing misconduct charg- es against her." He claims Foster told him she planned to move to the United States to practise and that it was "crucial that the plaintiff not be found guilty of professional mis- conduct." He also quotes an e-mail to Foster three days before the panel's decision requesting in- structions to allow admission of the medical report on the under- standing that the LSUC would discontinue misconduct applica- tions against her in return. According to Hughes' de- fence, Foster replied: "Hi Ken, this is fine, please proceed. Thanks, Trace." See Foster, page 5 Focus On Municipal & Planning Law Quote of the week "From an equality standpoint, any restriction that is arbitrary can be found to be discrimina- tory. It's on that basis that we would challenge [the rules on group homes]. The social sci- ence shows there's no negative impact on the community." — Kathy Laird, Human Rights Legal Support Centre, See Toronto, page 12 100 Years 7 Doing The Math 9 3

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