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PAGE 2 NEWS Lawyer makes more money doing simpler work Continued from page 1 If Flisfeder takes on the case, Burstein asks, which of the accused will he represent and which will get the more experienced Powell? "How do we decide that? Flip a coin?" On the other side of that coin are veterans of murder trials ardently supporting the boycott. Since being called to the bar 25 years ago, John Struthers has acted on 56 homicide trials. Before he began refusing legal aid certifi - cates, murder trials in the Greater Toronto Area accounted for about half of his work as a sole practitioner. "Th ese are the toughest and most interesting cas- es in the criminal justice system," Struthers says. Only about 100 experienced criminal law- yers handle almost all GTA murder trials, giving "fantastic representation on extremely diffi cult cases," Struthers says. "Th e government doesn't know how lucky it is." Th at expertise and experience mean fewer mistrials and appeals, which saves the system time and money, he adds. Th e need for properly funded defences grows, he says, as guns-and-gangs investigations bring extraordinarily complex cases with multiple ac- cused before the courts. "Many of them are the size of the Nuremberg trial." Since the boycott began, Struthers says he has had no problem in directing his talents to other areas of criminal law. "I fi nd it in many ways relaxing. Many of us are wondering why we suff ered for so long." And he fi nds himself getting paid more for simpler work. "You get more money doing an impaired- driving case on a Tuesday than doing a murder trial for two weeks." It's that imbalance that is pushing talented lawyers away from accepting legal aid work, Frank Addario said recently at the CLA's fall conference. While similar eff orts to lobby the government to reform legal aid have failed in the past, Add- ario said the criminal bar has a new determina- tion this time around. "It costs real money to deliver justice. Legal aid is not a charity, and the people who provide its services are not volunteers," Addario said in his fi nal speech as CLA president. Th e day before the association's board was set to vote on a motion to broaden the boycott and withdraw from the Justice on Target strategy, the Ministry of the Attorney General opened the door to talks, Addario said. "Th is is the opportunity we've been asking for to sit down and explain to the ministry why the amount of money put out there is inadequate to fi x the program and restore its credibility." Th e province has agreed to a 60-day period of discussions on tariff s and the allocation of funding. However, Addario warned that the bar will promptly escalate its fi ght if the province's con- ciliatory gesture proves to be empty. "Given how long the matter has been studied, we should know very quickly if this process is a waste of time." LT Subscribe to Law Times Why pay extra for your legal news? Cutting-edge legal affairs, news and commentary for just 37¢ a day! Make the time for Law Times and keep up with all the developments in Ontario's legal scene. Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE 1-800-265-8381 www.mckellar.com www.mckellar.com $3.55 • Vol. 20, No. 13 Covering Ontario's Legal Scene Titogether we have all the tools. tlePLUS title insurance and you, TitlePLUS title insurance and you, together we have all the tools April 20, 2009 BY ROBERT TODD Law Times F dicial Council's decision to call for his ouster, saying he was compelled to resign due to his pending retire- ment, despite finding aspects of the council's report "troublesome." Cosgrove tells Law Times in an interview that once the CJC issued its recommendation to the justice minister, "My options were pretty narrow." While he believes he could have appealed an earlier inquiry report ormer Ontario Superior Court justice Paul Cosgrove has spo- ken out on the Canadian Ju- inquir committee Court, he says a decision was un- at month after the CJC issued a final re- port stating that his actions in a late- Cosgrove earlier the Federal likely before his mandatory retire- Former Superior Court justice Paul Cosgrove tells Law Times that his ment took hold in December. resigned pending mandatory this this rather than battle a call for his ouster 1990s murder trial led to the conclusion that he "failed in the execution of the duties of his judi- cial office and that public confidence in his abil- ity to discharge those duties in future has been irrevocably lost." The decision made him only the second federal judge to meet such a fate. But the former judge says parts of the CJC's mandatory retirement compelled ouster. ement compelled him to resign the senior regional judges in Ottawa since I've been here for the last 24 years, all wrote very positive recommendations, and they also were aware of the trial," says Cosgrove. "So to say that these letters, the people had final report could have been challenged. The council did not use a set of 32 letters of esign from the bench 'Shock and disappointment' Cosgrove says 'life goes on' after the bench Cosgrove's final criticism is the people in public office, and they were given little weight, according to the decision." CJC's determination that the issue of public confidence was central to its decision. He suggests that it remains unclear what evidence is required to make such a determination. given rise for us to challenge," he says. "The problem with that is, of course I'm retired — manda- tory retirement in December of this year. And the process, for ex- ample, dealing with the constitu- tional issue, took three years." He says he did not want to "So, all of those issues may have Financial Matters 9 with 20,000 pages of evidence likely put forth. The 74-year-old former judge, who will gamble and let the matter play out before Parliament, where an un- precedented joint resolution would have been required to finalize his ouster. Doing so may have proved cumbersome, suggests Cosgrove, no knowledge of what was going on was not accurate." Cosgrove also suggests the council should support written by judges and retired judges, law- yers, and members of the public when coming to its decision, saying they were irrelevant, he notes. "Personally, I found that difficult because, for example, there were my supervising judges, have used the letters from community mem- bers when considering whether he had lost the public's confidence. "It would seem to me that it's logical to test collect an annual pension of about $170,000, says that before the decision he was reason- ably confident that the council would not call for his dismissal. Independent counsel Earl Cherniak, a partner at Lerners LLP, had previ- ously told the council such a stern punishment was not necessary. "It was shock and disappointment," Cos- what the public's demeanour is; you ask people who are knowledgeable in the public," he says. "And there were a number of letters from See Cosgrove, page 4 Focus On ADR/ Mediation Inside This Issue 3 Fight Over Fees 6 Quote of the week grove says of his reaction to the final decision. He says he has been dealing with the fall- out by responding to media inquiries, and "It is now incumbent on sports federations in selection disputes to show they had the proper criteria set up and that it was properly applied . . . The onus is now on the organiza- tion not the athlete. It wasn't quite as clear a few years ago." BY TIM NAUMETZ For Law Times OTTAWA — The possible closure of McCarthy Tétrault LLP's high- profile office in the nation's capital is unrelated to dire economic cir- cumstances that have hit home for some Canadian law firms, a senior McCarthys partner says. Future uncertain for McCarthys' Ottawa office zation we review our business plans on an ongoing basis," Boake tells Law Times when asked of the Ot- tawa office closure possibility. She adds the firm wants to meet the needs of its clients, and that each of its offices have a practice and focus which aligns with McCarthys' over- all strategy. "So it's in that context "Yeah, I guess, like any organi- staff, remains undecided. "It's really just a question of the fact that we are in discussion with lawyers there as part of an overall strategic review," she tells Law Times. "These discussions have been decisions" because of a drop in busi- ness due to the economy, letting go less than 20 of its 650 lawyers across the country. She would not give the specific number or other details. Gowling Lafleur Henderson going on for a while and are not related to the economy," she says. "I would call it a strategic review. Our firm really focuses on integrat- The financial crisis that has hit directly New York and London, being financial centres of the world, and the financial institutions based there, has not hit to the same degree in Canada, primarily because of the strength of the financial institutions in Canada. McCarthys' Ottawa contingent is a "strategic review" based on the firm's national business plan, and the role played by all of its six loca- tions across Canada, says Barbara Boake, national leader, profession- als, at McCarthy Tétrault. Consideration of the future of that we're currently reviewing the Ottawa office, but no decision has been made to close it," she says. Boake would not divulge fur- ther details and said the fate of the office, along with the employ- ment of its seven partners, two associates, and 11 administrative ed practices; we have offices right across the country. We have a very diversified practice geographically and our overall strategy is to inte- grate those practices and develop client teams on a firm-wide basis." Boake, however, confirmed Mc- Carthys has taken "difficult staffing LLP also confirmed to Law Times the firm released staff last week. But Gowlings chairman and CEO Scott Jolliffe said the shakeup did not involve partners or associ- ates. Jolliffe says the firm is shifting toward a "pod" model where law- yers and associates share a smaller number of secretaries, but he would not say how many were affected. The move not only economizes, but also creates a team atmosphere among secretaries that is useful for mentoring and sharing workloads. Sources in the legal community See Ottawa, page 4 say McCarthy Tétrault's Ottawa re- view may be related to a management WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca December 7, 2009 • Law Times Prosecutors will testify despite new law Continued from page 1 examinations, says Sean De- wart, head of Sack Goldblatt's civil litigation group. In addition to eliminating juries from malicious pros- ecution trials, the bill allows the attorney general to "re- fuse to produce a document or to answer a question on the ground that the produc- tion or answer would be inju- rious to the public interest," the legislation says. "In an adversarial proceed- ing, you've got one side decid- ing what they're going to answer and what documents they're go- ing to produce," Dewart says. He adds that the bill allows the deputy attorney general to designate who will be exam- ined for discovery. "Th ey could decide to put in his superior or his receptionist or whoever they feel like." In an e-mailed response, the ministry said the concerns are unfounded. "Th e prosecutor whose con- duct is the subject of the claim will still normally be examined for discovery on the basis that that person is clearly the best source of evidence. "In addition, the Crown will continue to be subject to the normal rules for inspec- tion and discovery of docu- ments. Th e Crown will con- tinue to be entitled to refuse to produce a document where to do so would be injurious to the public interest." Dewart calls that response "disingenuous," noting that un- der the rules of civil litigation, Crown attorneys facing a claim are not currently entitled to withhold documents. And he objects to the way the province is trying to imple- ment the changes. "It's legislation by stealth," q Send me 1 year of Law Times for only $135.00 (Total with GST: $141.75) Name: __________________________________________________________________________ Company: _______________________________________________________________________ Address: ________________________________________________________________________ City: ____________________________ Prov: _______________ Postal Code: __________________ Tel: ( ) _______________________ Fax: ( ) ______________________ Email: ____________________________________________________________________________ q Payment enclosed q Charge my: q Visa q Mastercard q American Express Card #: __________________________________ Expiry Date: ___ / ___ (mm/yy) Signature (required): ________________________________________________ Date: ________________ 240 Edward St. Aurora, ON. L4G 3S9 Tel: (905) 727-0077 Fax: (905) 727-0017 Mail or fax this form to Law Times he says, noting the govern- ment buried the changes in an omnibus bill. "It's policy coming out of nowhere, and they're saying it's just a housekeeping bill." Dewart also alleges the gov- ernment breached a duty to consult with the profession. For his part, Sokolov is par- ticularly concerned with the pro- posed elimination of jury trials. "Any other professional that is subject to civil litiga- tion can be subject to a trial by jury. Why is a Crown attorney so diff erent?" However, Cavalluzzo says juries are not in the best posi- tion to address the two key ele- LT_1-4sub.indd 1 12/2/09 11:15:04 AM WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-7 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 5/29/08 1:05:49 PM Sean Dewart is concerned about new rules he says came 'out of nowhere' in the good government act. ments of a malicious prosecu- tion fi rst set out in Nelles. "Th ese two separate ques- tions are legal questions bet- ter to be answered by a judge sitting alone rather than a jury," he says. And in response to objec- tions that the defendant won't have to produce certain docu- ments, Cavalluzzo notes that the deputy attorney general must deliver a document list. "Hopefully, we can rely on the deputy attorney general, rely on good faith. Other- wise, the whole system will break down." Sokolov says it's the kind of provision that could be sub- ject to abuse. However, the concerns of civil litigators may be merely academic in light of the Su- preme Court's recent ruling in Miazga v. Kvello Estate, says James Morton, head of Stein- berg Morton Hope & Israel LLP's litigation group. Th at ruling tightened the test for what qualifi es as mal- ice and declared that plain- tiff s must demonstrate a pros- ecutor intended to subvert or abuse the judicial process. "It's almost impossible to imagine anyone ever succeed- ing in a malicious prosecu- tion claim against the Crown," Morton says. As well, part of the concern with having juries try mali- cious prosecution cases is that they may award a claim on the basis that a plaintiff was mere- ly the victim of a miscarriage of justice even in the absence of a deliberately improper purpose, Morton says. "When you recognize you cannot succeed unless you have actual animus, the concern is that the jury might disregard the instruction of the court." LT www .lawtimesnews.com Includes a FREE digital edition!