Law Times

November 14, 2011

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PAGE 6 COMMENT Law Times Group Publisher . . . . . . Karen Lorimer Editorial Director . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . .Kendyl Sebesta Staff Writer . . . . . . Michael McKiernan Copy Editor . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . . Lorraine Pang Art Director . . . . . . . . . Alicia Adamson Account Co-ordinator . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . Derek Welford Advertising Sales . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter LSUC on wrong path with treasurer pay I t would be easy to argue that now isn't the time to increase the Law Society of Upper Canada treasurer's honorarium. With dark economic clouds looming and federal Finance Minister Jim Flaherty revising his budget plans, it's obvious that the LSUC's timing in increasing the next treasurer's honorarium to $175,000 from $108,000 this year is bad. Th e law society had likely been consid- ering the increase previous to the recent barrage of bad economic news. Still, with many Canadians set to receive minimal wage increases in the coming months and the possibility of more job losses, boost- ing the next treasurer's remuneration by 62 per cent comes a t the wrong time. Still, it's worth considering whether, beyond the issue of timing, the trea- surer should receive a more generous honorarium anyway. As a report to Convocation noted, Treasurer Laurie Pawlitza works more hours than her predecessors did. In fact, she devoted 1,859 hours to treasurer's activities in her fi rst 12 months in the role. Th at works out to nearly 36 hours per week for a role that's not meant to be a full- time job. Pawlitza is certainly busy. In a memo to the fi nance committee, she noted she gave 99 speeches and attended 600 LSUC-related meetings during the fi rst 12 months. At the same time, it's clear that the treasurer's role and the scope of the LSUC's work are growing in com- plexity. Th e introduction of the continu- ing professional development require- ment, for example, shows that the law society is doing more to regulate the pro- fession. Undoubtedly, the treasurer must take an active role in those changes. It's clear, then, that the treasurer pro- vides value to the profession that can jus- tify an increase. But given that the trea- surer's honorarium isn't meant to replace the billable hours a person would other- wise earn or represent a salary, there's a reasonable argument that the law society shouldn't be providing remuneration on the basis of hours worked. Th e LSUC isn't necessarily doing that even with the increase but it's nevertheless trying to bring the honorarium more into line with the demands of the job. On a broader level, the increase is re- fl ective of many organizations' eff orts in recent years to compensate people more fairly given the increasing complexity of their jobs. At the same time, after years of austerity during the 1990s, many em- ployers, particularly in the public sector, decided to play catch-up. Th ere's nothing wrong with that in general, but it's clear that with the economic slowdown, large defi cits, and a public aversion to tax hikes (or, in this case, increases to law society fees) to pay for more generous remunera- tion, we can no longer aff ord to continue the way we have. On the issue of treasurer remunera- tion, the LSUC could have at least phased in the increase. In addition, if it truly be- lieves it's necessary to increase what the treasurer receives given the changing role, it should consider Bencher Julian Fal- coner's suggestion of putting the LSUC's highest elected offi cial on a salary. In the meantime, it's worth asking whether soci- ety can keep on the path of bureaucratic creep and the resulting cost increases it has been on for the past few years. — Glenn Kauth dian Tire obtained an injunction prohibiting an unsatisfi ed cus- tomer from picketing a store and carrying a sign with the words, "CDN Tire cheated me will they cheat you?" Nowadays, the disgruntled customer could resort to all manner of remedies, including Twitter, a Facebook page, and entries on a blog or any number of sites devoted to the airing of consumer grievances. Equally remarkable are the advances in defamation law to protect the consumer from facing a disas- trous result in a lawsuit. It wasn't so long ago when former justice Peter Cory of the Supreme Court of Canada com- mented how "it is not requiring too much of individuals that they ascertain the truth of the allega- tions they publish." At the same time, he was of T the view that defamation law couldn't be seen as "unduly re- strictive or inhibiting." Th is was the accepted view of the judiciary echnologically speaking, we've come a long way since 1972 when Cana- Canada's defamation law grows up Social in 1995 as expressed in Hill v. Church of Scientology of Toronto. Even as late as that year, the protection of reputation was of much greater importance than any perceived right of free ex- pression. Since then, we have seen several Supreme Court cases reversing what has since been accepted as the unduly restric- tive and inhibiting nature of defamation law. First, we had the restatement of the fair com- ment defence in WIC Radio Ltd. v. Simpson, a case that made it abundantly clear that "outra- geous" and "ridiculous" opinions are deserving of as much protec- tion as "moderate" commentary. Th e test wasn't whether the opin- ion was one that a fair-minded person could hold but rather whether it was one that anyone could have honestly expressed. Next, we had Grant v. Torstar Corp. and Quan v. Cusson, both decisions of the Supreme Court that established the public inter- est responsible communication defence. Th e two decisions made it abundantly clear that in some Justice By Alan Shanoff circumstances, it was requiring too much of a defendant to ascer- tain the truth of every allegation it published. Defendants had the right to be wrong provided that they acted responsibly. Assessing responsibility should take into account the sophistication of the defendant. Finally, the Supreme Court released Crookes v. Newton this year, a case in which it refused to apply the republication rule in all its harshness to hyperlinks on a web site. In the meantime, the Ontario Superior Court of Justice released the decision that loosened the strict rules of defamation law while accepting the realities of in- sults hurled on blogs. Th e upshot of all of this is a new reality for disgruntled cus- tomers. While risks remain, the www.lawtimesnews.com danger of someone like the un- happy Canadian Tire custom- er being sued today for such a complaint is much less. At the same time, the likelihood of ending up on the losing end of a defamation lawsuit has de- creased. It's much more likely that the court would view the complaint as an expression of opinion, as opposed to a state- ment of fact, that's more likely to attract a fair comment defence. Even if taken as a statement of fact, people can defend their com- plaints through the public inter- est responsible communication defence. Th at's not to say there are no risks or that such a defence might not be expensive to pur- sue. A plaintiff retains the ability to cause a defendant to rack up substantial legal fees in defending any defamation action. As well, the responsible communication defence remains in its infancy. It's not yet clear how quickly the lower courts will embrace it. But more than the actual de- cisions themselves, we're seeing a societal change in the balance between protecting reputations November 14, 2011 • Law Times Thomson Reuters Canada Ltd. 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ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call Karen Lorimer at 416-649-9411 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 416-649-8875 kimberlee. pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. and freedom of expression. Soci- ety is more accepting of criticism, even stinging commentary about businesses. We accept that not every consumer will be satisfi ed and that unhappy customers may publish venomous attacks in all manner of forums. We also understand that a business under attack may em- ploy a public relations team to defl ect it using traditional and electronic media. Both the need and desire to sue appears to be lessening. Indeed, a business us- ing the heavy-handed approach of a lawsuit would likely fi nd it- self with a larger public relations problem in addition to being the subject of more derision. Th e unhappy Canadian Tire customer in 1972 was just a bit ahead of his time. Technology, law, and society have caught up to him. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He's cur- rently a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff @gmail.com.

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