Law Times

April 6, 2009

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A. NEUMAN ASSOCIATES INC. McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 www.mckellar.com $3.55 • Vol. 20, No. 12 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM Cosgrove resigns Canadian Judicial Council recommends judge's removal BY ROBERT TODD Law Times uperior Court Justice Paul Cosgrove resigned late last week thus dodging the dubious distinction of possibly be- coming the first judge in Canadian history to be voted out of office by Parliament. The resignation came three days after the Canadian Judicial Council recommended his ouster to the federal justice minister. "We find that Justice Cosgrove has failed S in the execution of the duties of his judicial office and that public confidence in his ability to discharge those duties in future has been ir- revocably lost," wrote 22 judges from Canada's superior courts who finalized the matter. "We find that there is no alternative measure to removal that would be sufficient to restore public confidence in the judge in this case." Cosgrove's lawyer Chris Paliare tells Law Times his client "wants to spend more time with his family and grandchildren, and that he genuinely loved his work and is and was of the view that whatever occurred in the Regina v. El- liott case was all done in good faith by him." Paliare says Cosgrove "figured that he's got six more months to go before he's 75 and this is not something that he wanted to endure." Justice Minister Rob Nicholson said in a release announcing the judge's decision, "In view of the fact that Justice Cosgrove has re- signed, there is no further action to be taken." Meanwhile, a specialist in legal ethics and professionalism suggests the council's deci- sion creates a tenuous approach to weighing the proper outcome of judicial misconduct. The council decision states, "In this case, it is Justice Paul Cosgrove leaves a meeting of the Canadian Judicial Council last month where he made a final pitch in vain to keep his job. our conclusion that the misconduct by Justice Cosgrove was so serious and so destructive of public confidence that no apology, no matter its sincerity, can restore public confidence in the judge's future ability to impartially carry out his judicial duties in accordance with the high standards expected of all judges." The council said that a concession from Cosgrove that his actions meant he could not sit on cases involving the provincial or fed- eral Crown acted as a "tacit acknowledgment" that many litigants may not have confidence in his ability to judge impartially. The council also found that letters of sup- port for Cosgrove do not help determine if public confidence was too deeply under- mined by his blunders in a murder trial. Once the CJC recommended Cos- grove's removal, the final step would have been a joint resolution of Parliament. Cosgrove is the second judge the CJC has recommended to the minister of Justice for removal from office. In 1996, it called for the ouster of Quebec Superior Court Justice Jean Bienvenue, who was cited for offensive remarks against women, but he also resigned before the matter went before Parliament. The 74-year-old Cosgrove, a former federal cabinet minister and mayor of Scarborough who has lived in Brockville since becoming a judge in 1984, would have reached mandatory retirement from the bench in December. "We're just very disappointed by the result," says Paliare, a founding partner of Paliare Roland Rosenberg Rothstein LLP. "I was cautiously optimistic that we would have prevailed. That was my view following the argument." Cosgrove declined Law Times' request for comment on the decision. See Resignation, page 4 Ontarians from accessing legal ser- vices if it goes ahead with a plan to harmonize the provincial sales tax with the federal goods and services tax, says the president of the On- tario Bar Association. "That will force up the cost of legal services, and therefore make legal services less affordable to those who otherwise would be able to af- ford them," says Jamie Trimble. The province's recently unveiled budget included a plan to harmo- nize the eight-per-cent PST with the five-per-cent GST. It means consumers will have to fork over the extra eight per cent on various OBA: harmonized tax could hit access to justice T BY ROBERT TODD Law Times he government could cre- ate a "tipping point" that keeps many cash-strapped items not currently subject to the provincial portion, such as homes over $500,000, fuel, electricity, and automobiles, starting July 1, 2010. While some items, such as car insurance and kids' clothing, will remain exempted, professional TitlePlus_LT_Jan12_09 12/23/08 11:07 AM Page 1 services like lawyers fees won't. Trimble says there are many as- pects of the budget that will ben- efit lawyers, as business people. Corporate tax rates will go down to 12 per cent from 14 per cent in July 2010, with a further reduc- tion to 10 per cent by 2013; the small business rate will fall to 4.5 per cent from 5.5 per cent; the 4.25-per-cent small business de- duction surtax will be eliminated; and capital tax will be eliminated by July 1, 2010, notes Trimble. "So there are lots of good things, and what it's going to do is make us more competitive," he says. The OBA also recognizes that the government is "in a bind, with the economy doing what it's do- ing, tax revenues really affected; the government has some real chal- lenges to face," says Trimble. And while there are many "good, sound reasons" for harmonizing the sales taxes, such as the cost of adminis- tration, some aspects of the propos- al need more discussion, he says. The OBA has put together a working group to consider how the plan may affect various areas of legal practice, says Trimble. But Trimble says, "If you extend the HST to cover legal services, then that has the potential to create or ex- acerbate an access to justice issue." 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TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS® policies do not include legal services coverage. 1 The Dirt 8 Focus On Class Actions Quote of the week "In the U.S. they have a system to control what they call multi-district litigation where they can bring it all together and co-ordinate it. We haven't evolved to that level yet." –– Tim Buckley, partner, Borden Ladner Gervais LLP See Co-ordination, page 12 Inside This Issue 3 Family Court Warning 6 Covering Ontario's Legal Scene Forensic Accounting & Damages Quantifi cation Specialists Turn Crisis into Opportunity IFAccountant.com (416) 223-5991 Neuman_LawTimes.indd 1 April 6/13, 2009 12/9/08 11:12:30 AM sales tax applied to legal services seems "somewhat contradictory to the concept of ensuring appro- priate access to justice through at- tempting to keep legal services as affordable as possible." Bocock says CDLPA is con- sulting with the profession before taking an official stance, but ac- knowledges that various aspects of the harmonized tax strike him as being worth a debate. While the harmonized tax wouldn't take hold until next year, Bocock says lawyers effectively need to start adjusting immedi- ately, in terms of business consid- erations. Trimble suggests typical social trends in difficult economic times could exacerbate the impact of the harmonized tax. He says the number See Tax, page 4 www.lawtimesnews.com Photo: Colin McConnell, Toronto Star

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