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February 9, 2009

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A. NEUMAN ASSOCIATES INC. McKELLAR STRUCTURED SETTLEMENTS INC. 1-800-265-8381 $3.55 • Vol. 20, No. 5 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM Family law judges ponder costs against counsel Delays may hit lawyers' wallets BY ROBERT TODD Law Times J udges could soon take a more aggressive approach to dipping into lawyers' pocket- books for costs in cases where unprepared counsel stall matters at Ontario's busy family law courts, a legal conference has heard. Justice Carole Curtis, of the Ontario Court of Justice, said it's often clear to judges whether it is a client or counsel who has caused a case to grind on, adding she successfully used Rule 24.9 of the Family Law Rules when she prac- tised. The rule calls for an award to be made against counsel if it is shown that the lawyer has "run up costs without reasonable cause or has wasted costs." Curtis, speaking to an audience of family law lawyers at last week's Ontario Bar Asso- ciation Institute, said, "Call it instinct, call it whatever you like, we were all lawyers, we all had clients. In a case where it's very clear that the lawyer is responsible, there's no doubt that the judge will try and fit that situation into Rule 24.9." She added, "It's not that it should be $50,000; $500 or $1,000 sends quite a scary message to a lawyer." The remarks were made during a judge's panel on family law cost claims at the annual continuing legal education conference, held at the Toronto Conference Centre. Curtis, who presides in Toronto, was joined on the panel by Superior Court Justice Francine Van Melle, the regional senior judge for the central west region, and Superior Court Justice Craig Perkins, who sits in Newmarket. Cheryl Goldhart, of Gold- hart & Associates, moderated the session. Van Melle said few lawyers are aware of Justice Francine Van Melle says few lawyers are aware of — or utilize — Rule 24.9 of the Family Law Rules, but courts could become more proactive. — or utilize — the rule, but courts could become more proactive. "I think you may see it happening more and more, because I know certainly in Brampton, we as judges, our court is very, very busy," said Van Melle. "When I hear eight or nine case con- ferences in a day, four or five of which are not ready to proceed, at some point, somebody's going to have to bear the cost of that, and I expect it will be the subject of an upcoming meeting of the judges of my region." Added Van Melle: "Lawyers on the other side never ask, never refer to this particular rule and never say, 'Look, he or she should be paying the costs because they're the one — it wasn't their client — who didn't prepare the brief.'" The judge said clients at case conferences often point out to their lawyers that required information was offered up months ago. "Those are the cases where the lawyer should be paying," said Van Melle. "It was the lawyer that, for whatever reason, didn't put his or her mind to the file and didn't make the disclosure." The judge noted that while requests for costs from lawyers have so far been rare, they may be overdue with the volume of cases courts now face. "Our resources are getting more and more stretched. It's just a complete waste of time when people aren't prepared to do whatever they're there to do," she said. But Goldhart said she would be hesitant to press for costs against an opposing lawyer. "As counsel I would be quite reluctant, even if I was frustrated to hell . . . by counsel on the other side, to actually come before the courts and say, 'I want costs personally,'" she said. "I'd have to be pushed beyond places I've been pushed." Curtis said she had no problem using the rule. "I did it as counsel and I got them," said Curtis, who was appointed to the bench just over a year ago. Perkins said it's important for counsel to "use the magic words" when submitting a Rule 24.9 motion. And while he admitted to being reluc- tant to use the rule, he added, "On the other See No, page 2 Apology issued to Crown attorney BY BARBARA BROWN For Law Times HAMILTON — A Hamilton de- fence lawyer has issued a public apology to the city's acting Crown attorney for a letter he posted to the Criminal Lawyers' Association listserv that was later leaked to the senior prosecutor. A defamation lawsuit filed by Katherine Livingstone against local criminal lawyer Michael Puskas was settled out of court on Feb. 2, a day before the trial was to begin. Puskas was not required to pay costs or damages but agreed to write a letter of apology to Livingstone for "unfair and untrue" comments made about her in an e-mail he disseminat- ed on the listserv two years ago. He agreed to publish the apolo- on the same e-mail discussion group for lawyers as the original letter of Feb. 10, 2007 and to also send it to a list of 23 lawyers who were known to have read the offending missive. The apology reads in part: "I fur- ther apologize for making a number of unfair and untrue statements and comments about Ms. Livingstone, in the letter that criticized her character and the manner in which she con- ducts herself as a Crown attorney." His apology states unequivocally that Livingstone "has not done any- thing that crosses any ethical lines" and that Puskas regrets any harm or distress he has caused her. The original letter posted on TitlePlus_LT_Feb9/16_09 2/4/09 2:02 PM Page 1 gy, with its subject line in bold font, the listserv was addressed to the prosecutor, but not received by her. The letter followed a remark that Livingstone reportedly made to Puskas' law associate and to which he took exception. Puskas said in his statement of defence that he had reservations about sending the letter to the then-deputy Crown attorney and distributed a draft of the letter to the CLA's listserv in order to get advice from colleagues. He said the discussion group is subscribed to by members only and he had an expectation of confiden- tiality that encouraged candor in online discussions. CLA president Frank Addario said members who use its listserv agree to abide by a list of condi- tions, including to not dissemi- nate any material that is "defama- tory or otherwise actionable." They also agree to keep messages on the listserv confidential and to not share them with anyone who is not a member. 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Program1 , Subscribers further agree "not to institute legal proceedings of any type" against a member of the CLA in respect to any message that is published on its listserv, except to enforce the legal indemnifica- tions provisions set out in the con- ditions-of-use agreement. As a lawyer for the Crown, Liv- ingstone was not a member of the CLA and did not subscribe to the listserv. The letter written about her by Puskas is believed to have been for- warded by a subscriber. "We encourage the listserv to be used as a virtual coffee room or chat site for criminal lawyers to bash ideas around, share gossip about judges and cases and theories of the defence," said Addario. "And it's predicated on the See Listserv, page 5 Day of Discipline 9 Focus On Intellectual Property/Trademark Law Quote of the week "Patent holders now must prove that they themselves, as opposed to their licensees, have or will suffer irreparable harm. Irreparable injury and the inadequacy of money damages are no longer presumed. If the plaintiff has demonstrated a willingness to accept licence income, the courts have held that the plaintiff has basically admitted that money damages are adequate." –– Allen Rugg, litigator Wolf Greenfield & Sacks PC See Canada, page 11 Salary Delay 6 Inside This Issue 3 Covering Ontario's Legal Scene Forensic Accounting & Damages Quantifi cation Specialists Turn Crisis into Opportunity (416) 223-5991 Neuman_LawTimes.indd 1 February 9/16, 2009 12/9/08 11:12:30 AM

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