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March 2, 2009

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A. NEUMAN ASSOCIATES INC. McKELLAR STRUCTURED SETTLEMENTS INC. 1-800-265-8381 ckellar_LT_Jan14_08.indd 1 $3.55 • Vol. 20, No. 7 1/8/08 3:03:02 PM Covering Ontario's Legal Scene 'We can do better' Symposium on Lifelong Learning in Professionalism BY ROBERT TODD Law Times Court of Appeal Justice Stephen Goudge. "Will lawyers increasingly see anything aspects T but the narrowest of professional- ism, such as the most minimal compliance with the rules of professional conduct in order to escape the discipline process, as a luxury they can no longer afford in the fran- tic scramble to do law as business?" pondered Goudge at a symposium hosted by the Uni- versity of Toronto Faculty of Law's Centre for the Legal Profession and organized by the Chief Justice of Ontario's Advisory Commit- tee on Professionalism. Goudge quickly went on to acknowledge, "That's a negative image. I want to say imme- diately that, for me, that is a reality. That is, law as business. For those of us that want to enhance the professional responsibility that goes with the practice of law, working with that, as opposed to decrying it, is something that is absolutely essential." The Symposium on Lifelong Learning in Professionalism featured panel discussions led by legal scholars, judges, and lawyers. It ended with Goudge's delivery of the 2009 Annual Goodman Lecture. The judge suggested that the battle for common standards of professionalism can be traced to the transformation of the legal in- dustry over the past half-century. "The profession 50 years ago was different than it is now," he said. "And it was in a dif- ferent context than it is now." he main threat to professionalism in the legal industry is big firms' profit- first approach, according to Ontario "While there remain fundamental values that all lawyers should share, the sense of diver- sity of practice makes this challenge of lifelong learning a little starker than it was in the past." While a lot has changed in the past 50 years, Goudge outlined a set of key challenges to professionalism. The largest hurdle, he said, is the business model of the practice of law. "While there's always been tension be- tween the commercial dimension of law and its professional dimension, the last 25 years has seen changes that are of a wholly differ- ent order of magnitude," he said. "We've seen the rise of the national megafirms with their magnetic allure for the best and bright- est of the younger members of our profession." Goudge said for such firms, "The mea- Ontario Court of Appeal Justice Stephen Goudge says the decline in professionalism is due to a set of changes in the legal industry over the past 50 years. He noted that the Law Society of Upper Canada's Rules of Professional Conduct were for some time "the paramount means of com- municating what one did to manifest profes- sional values." That gave way to an era of a "shared professional culture," said Goudge, adding that the onset of more specialized legal practices detracted from that. sure of success becomes profitability. Income expectations become the primary driver of legal activity. Billable hours come to reflect the lawyers' ability to serve the needs of the clients and the justice system." The growth of specialization in the profes- sion also poses a threat, he said. "Lawyers no longer all share an identical professional cul- ture, at least compared to an era of a simpler and more homogeneous bar," said Goudge. "This comes at some cost to what was once an easy medium for the transmission of what re- mained for all of us common professional values." The final challenge to professionalism, said Goudge, is the growth of the size of the bar. A consequence of this expansion, he sug- gested, is that there are now fewer "modern heroes" in the profession. "We cannot look as we might have in the past to role models and mentors to play quite Green act may prompt flood of litigation BY TIM NAUMETZ For Law Times OTTAWA — Ontario's new green energy act could spark a flood of liti- gation and political battles over pro- visions giving Queen's Park the pow- er to "big foot" local governments over contentious renewable energy projects, a survey of legal opinion suggests. On one side, some lawyers recog- nize the legislation will take citizens and municipal governments out of the picture when it comes to approv- als for wind turbines, solar energy installations, and transmission lines. Lawyers on the other side argue the bill tabled last week will actually give opponents better access to ap- peals if the province approves "wind farms" or sprawling solar panels near their neighbourhoods or farms. The dispute centres on the Mc- Guinty government's dramatic pro- posal to exempt approved renewable energy projects from municipal plan- ning and zoning bylaws. The measure is intended to elimi- nate "nimbyism" — the not-in-my- backyard local resistance that has de- layed or prevented wind turbine and solar projects in communities around the province. One of the most notable is a pro- posed wind farm for Lake Ontario offshore from the Scarborough Bluffs in Toronto. The act amends the province's Planning Act to specifically state an official municipal plan "does not af- fect a renewable energy generation facility or renewable energy project." Sarah Powell, a partner in the en- vironmental group at Davies Ward Phillips & Vineberg LLP, says the political warnings from Premier Dal- ton McGuinty and Energy and In- frastructure Minister George Smith- erman was dramatic during the lead up to publication of the proposed law. "The premier was very outspo- ken, as was the minister; language I hadn't really heard before from either one of them, essentially saying mu- nicipalities wouldn't be permitted, I think the words he used were 'to stand in the way of the greater public interest,'" Powell tells Law Times. "Their power is being removed from them and it's being uploaded to the provinces," she says. "Those amendments to the Planning Act are really significant. Essentially, the land-use bylaws, the official plans, will cease to apply to renewable en- ergy projects." Powell adds that stringent grounds for appealing provincial ap- proval for the projects under the new green energy act and the new pro- vincial power to arbitrarily establish criteria such as minimum distances from housing, roads, and other local infrastructure are at the root of claims the bill is "undemocratic." Richard King, an environmental and energy lawyer at Ogilvy Renault LLP, says the province put its foot down on local concerns that delayed projects until now, particularly in cas- es where opposition centered around aesthetic preferences or commercial considerations such as property val- ues. "In a sense, the province has al- ways been the final say on provincial planning, but this has basically laid down the law and said, 'You know what, we as a province are going to See Appeal, page 3 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 5/29/08 1:05:49 PM Forensic Accounting & Damages Quantifi cation Specialists Turn Crisis into Opportunity (416) 223-5991 Neuman_LawTimes.indd 1 March 2, 2009 12/9/08 11:12:30 AM Inside This Issue 3 Ensure Full Disclosure 7 Blame The Government 10 Focus On Labour and Employment Law Quote of the week "The main ones for employers to think about are the intentional infliction of mental distress and the negligent investigation. I think from an employer's perspective the biggest thing that came out of this case was that for the purposes of negligence an employer cannot be found to have conducted a negligent investigation." — Erik Marshall, associate, Miller Thomson LLP See OCA, page 11 See It's not, page 5

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