Law Times

PAGE 2 More judges sought for family courts Continued from page 1 senior media relations adviser with the department. "For this reason, it would be premature to speculate." Asked to explain the reference to the department's plan to improve access to the family justice system by "assisting families seeking on their legal rights and obligations," Saindon was equally vague, referring Law Times to Nicholson's announcement last September. Nicholson made the announcement only a day before Prime Minister Stephen Harper called a federal election for Oct. 14. That announcement promised funding of $122 million over five years, including $16 million a year for the provinces and territories "to encourage parents to comply with their family obligations, including support and access obligations." The announcement went on to explain the money would help sup- port mediation, parenting education, and child-support recalculation services — "which all help to reduce costly and stressful litigation." But Grant Gold, the incoming chairman of a Canadian Bar Associa- tion section on family law, said lawyers and others involved in the area have heard nothing since then. Gold, counsel at McCague Peacock Borlack McInnis and Lloyd LLP, said a government official attended a subsequent meeting on the issue in October, but had little to add. "Someone from justice was there and all they were able to do was give us that press release," Gold tells Law Times. "There was really no discussion at that point as to what that meant, other than 'here is the press release.'" One of the biggest problems family courts continue to face is the need for more legal aid for parents who either don't have the resources to hire counsel for long divorce proceedings or — likely in the case of women who have little in the way of personal wealth but share sizeable family as- sets at the outset of divorce — can't qualify for legal aid certificates. "Any program that I'm speaking at or attending you're hearing ev- eryone, be they judges, lawyers, or members of the public, complaining about the fact that people are attending in court on their own, and that is a huge drain on the system," says Gold. Heather McGee, another specialist in family law, says despite the 20 additional positions Nicholson added to the superior court last year fam- ily courts, especially in Ontario, remain desperately short of judges. "The resources we are looking for at the federal level are increased resources, meaning more family judges," said McGee, a Markham prac- titioner and former president of the Ontario Bar Association who chairs the association's access to justice initiative. "It's an area where the federal government could really step up," she says. McGee adds the family law community is not looking at new judges to beef up the system at the trial end. They are needed for earlier stages, to supervise case conferences that lead to compromise settlements earlier in the divorce and avoid acrimonious settlements at the conclusion. "The longer the process goes on, the more pain there is," said LT McGee. NEWS February 2, 2009 • Law Times Exchange order and demand that a company get shareholder approval before finalizing a share exchange acquisition signals the importance of fairness, say lawyers. "In this case, fair treatment of shareholders is fundamentally more important than any con- sideration as to 'deal certainty' in assessing the impact of the transaction on the quality of the market place," said the commis- sion in its decision. "We have concluded . . . that the quality of the marketplace (within the meaning of section 603 of the TSX Manual) would be significantly undermined by permitting the transaction to proceed without the approval of the shareholders of HudBay. Fair treatment of shareholders is a key consideration going to the integrity and quality of our capital markets." In the Jan. 23 decision, the OSC stopped HudBay Minerals Inc. from wrapping up a share exchange acquisition — valued at $550 million — of Lundin Mining Corp. The commis- sion said the TSX erred when it ruled in December that HudBay shareholders would not have to approve the deal to make way for the listing of shares attached to the transaction. In its decision, the OSC stat- ed, "HudBay is prohibited from issuing any securities in connec- tion with the transaction unless treatment' of shareholders T BY ROBERT TODD Law Times he Ontario Securities Commission's decision to reverse a Toronto Stock it shall have first obtained the approval of the transaction by a simple majority of the votes cast by HudBay shareholders entitled to vote on the transaction at a duly convened special meeting of its shareholders." The OSC's decision followed an application by Jaguar Finan- cial Corp. to review the TSX's Dec. 10 ruling. Jaguar said HudBay share- holder approval should be man- datory for the deal to go through based in part on public interest concerns, specifically for inves- tor confidence in the quality and integrity of the marketplace, ac- cording to the OSC decision. Blake Cassels & Graydon LLP securities lawyers Jeff Lloyd and John Wilkin, in a recent re- port posted online, noted that the OSC's decision represents one of the few times in which the commission will interfere with a TSX decision. "However, the decision is sig- nificant for parties structuring acquisition transactions as it has outlined for the TSX and its listed issuers key factors that will inform the exercise of the TSX's discretion to require shareholder approval of such transactions," they wrote. "The emphasis is clear: fair- ness of treatment of sharehold- ers is of significant importance when determining the effect of the transaction on the quality of the marketplace, and may, in circumstances where sharehold- ers' rights and economic interests in an issuer are impacted, trump OSC highlights 'fair considerations of deal certainty." Jaguar general counsel Kyler Wells says that while the OSC's decision on this matter is not precedent-setting, "it will give some clarity to the marketplace as to what types of transactions or what factors they'll have to keep in mind when they're try- ing to structure their deals." He goes on to say that, "If a company is proposing a transac- tion and the proposed dilution gets up around these levels, they're going to want to read this decision and think about it very carefully, and think about the other factors that the OSC mentioned in the decision, to try to come to their own conclusion as to whether or not it makes sense to give both sets of shareholders a vote." Jaguar president and CEO Vic Alboini says the OSC's de- cision was "very fair and reason- able, and quite a balanced deci- sion," in prioritizing shareholder fairness over deal certainty. "Essentially, they had a very strong focus on the integrity of the markets, in saying that the TSX should have considered s. 603 of the TSX company manual, which talks about their focus on the effect the transac- tion has on the quality of the marketplace." Alboini says the OSC took a "simple but effective" approach to analyzing the various factors in the matter, which led it to ask the question, "One side is get- ting a vote and the other side is not. Why is that?" Atkinson takes the reins BY ROBERT TODD Law Times T MATHEWS, DINSDALE & CLARK LLP is pleased to announce the winners of the 11th Annual Canadian Labour Arbitration Competition which took place on January 23-25, 2009 at the Ontario Labour Relations Board Congratulations University of Toronto Student participants: Laura Johnson and Inie Park Coach: Laura Trachuk Assistant Coach: Sumrana Taher and to all the students, faculty, lawyers and arbitrators who participated in the competition. www.lawtimesnews.com om Atkinson, a familiar name in the securities regulation, enforcement, and litigation field, will soon take the reins of the Ontario Securities Commission's enforcement wing. "When we commenced our search, we knew that we would be seeking an individual who is not only an experienced litigator, but also a strategic thinker. A person who has a demonstrated record of effecting change," said OSC Chairman David Wilson in a release. "Tom is that person. He possesses the attributes and experi- ence necessary to lead the enforcement branch through the next stage of its evolution." Atkinson was the founding president and CEO of Market Regu- lation Services Inc., where he is credited for directing the company's culture toward results. Before that, he worked up the management ladder at the Toronto Stock Exchange, serving in such roles as vice president of regulation services, and several positions in the investiga- tions and enforcement division. He also served as an assistant Crown attorney from 1993 to 1996, where he litigated criminal matters. Atkinson received his law degree from the University of Windsor and a master's in public policy and public administra- tion from McMaster University. He's expected to join the commission to replace former enforce- ment director Michael Watson — who left in September 2008 to join the RCMP's Integrated Market Enforcement Program — Feb. 9. "I am really looking forward to working with the enforcement team and accessing the talent pool in the enforcement branch," said Atkinson. "The fast paced environment of enforcement defi- nitely means that I will hit the ground running." LT LT

• Cover
• Bail Hearing Bans
• Taming Mega-trials
• Focus On Family Law/Trusts & Estates