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March 8, 2010

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McKELLAR STRUCTURED SETTLEMENTS Billions of dollars invested, not a penny lost. 1-800-265-8381 $3.55 • Vol. 21, No. 8 cKellar_LT_Jan18_09 1 1/11/10 1:02:38 PM Covering Ontario's Legal Scene ainmaker_LT_June2_08.indd 1 Workplace death sparks charges O BY JULIUS MELNITZER For Law Times ntario's first instance of criminal charges against a corporation un- der a recent federal law may be a signal authorities are taking a more aggressive approach to workplace safety following a re- cent public outcry. This week, Millennium Crane Rentals Ltd. of Sault Ste. Marie, Ont., is to appear in court on charges of criminal negligence causing death following a fatal accident last spring. The case followed controversy over the deaths of four workers at a Toronto work site on Christmas Eve. The charges are the result of Bill C-45, a 2004 federal law under which prosecutions have so far been few and far between. "I can't think of another workplace acci- dent that has achieved such public attention," Ryan Conlin, a partner at Stringer Brisbin Humphrey Management Lawyers, says of the Toronto case. "Before these deaths, Bill C-45 had almost disappeared from the radar screen, but now employers will have to be aware that there may well be more police scrutiny of seri- ous accidents in the workplace." Before the bill's enactment six years ago, the courts could convict corporations of crimes only where the criminal acts or omissions were those of a "directing mind" or "alter ego" of the corporation. Jurisprudence limited "directing minds" to very senior employees with decision- making authority over policy matters. Under Bill C-45, however, the conduct of March 8, 2010 5/28/08 10:43:29 AM Inside This Issue Case may signal more aggressive approach following recent controversy cal line as lead hands and even non-employees such as agents and contractors. Bill C-45 also imposes a duty on anyone who "directs work" to take reasonable steps to prevent bodily harm to workers and the public. The combined effect makes a corporation subject to charges of criminal negligence when a senior officer departs markedly from the stan- dard of care required to ensure representatives don't breach this new legal duty. "Bill C-45 amended the Criminal Code to permit organizations, which include corpora- tions, to be more readily charged and convicted of criminal negligence causing either death or bodily harm," says Cheryl Edwards of Heenan Blaikie LLP. 'So far, it's been clear that the police have other, more pressing fish to fry and it has become clear that they will prosecute only in outrageous cases,' says Cheryl Edwards. senior officers and representatives can result in criminal liability for the corporation itself. Senior officers include anyone who sets policy or man- ages an important part of an organization. The representatives category is even broader, embracing employees as far down the hierarchi- The enactment of Bill C-45 prompted speculation about multiple and parallel charges under the Criminal Code and pro- vincial occupational health and safety legis- lation. But those fears haven't materialized. "As of the end of 2009, there were only two post-Bill C-45 criminal prosecutions arising from workplace accidents in Cana- da," Edwards says. The first occurred in 2004, when police charged Domenic Fantini, a supervisor with Toronto-area Vista Construction, with criminal negligence causing death. They alleged Fantini had failed to "take rea- sonable steps to prevent bodily harm" after a worker died on his watch. The Ontario Ministry of Labour also inves- tigated the fatality, eventually charging Fantini See Review, page 5 Lawyers have many options to get credits BY ROBERT TODD Law Times L awyers tinuing fretting over the Law Society of Upper Canada's impending con- professional develop- ment requirement can rest easy — an activity you already engage in may well meet the criteria for mandatory credit hours. Convocation accepted a joint recommendation from the pro- fessional development and com- petence and paralegal standing committees at its February meet- ing, creating a new educational requirement that will force law- yers and paralegals to complete 12 hours of continuing profes- sional development each year starting in January 2011. While the program will force many lawyers to black out extra hours on their yearly calendar, a long list of activities will qualify for the requirement. Participation in continuing professional devel- opment courses, registration in a college or university program, will also be awarded for teach- ing as well as writing and editing books and articles. Three of the required hours must target ethics, profession- alism or practice management. The law society will offer those components for free. Other pro- One of the chief issues that we were concerned about was the exclusion for certain activities performed by lawyers on a voluntary basis for various legal organizations. TitlePlus_LT_Mar9_09 2/27/09 11:23 AM Page 1 study groups, and educational parts of bar and law association meetings will be accepted. Up to six hours will also be awarded for acting as an articling principal, mentoring or being mentored, and supervising a paralegal field placement. As many as six hours viders wishing to supply continu- ing professional development in those areas must get approval from the law society. Practitioners will have to re- port their educational activities each year by Dec. 31 on a web- based portal, which will also Together we have all the tools To ensure your clients get the most comprehensive coverage in one title insurance policy, take a look at the TitlePLUS Program , your Bar-related real estate partner! 1 ® PROTECTION AS GOOD AS IT GETS 1-800-410-1013 ® TitlePLUS, the TitlePLUS logo, OwnerEXPRESS and LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ® BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. 1 Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®). Contact LAWPRO for brokers in Saskatchewan, Manitoba, Alberta and Québec. TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS® policies do not include legal services coverage. ® help them keep track of their credits by delivering periodic status updates. Those who fail to meet the requirement following a calen- dar year will face administra- tive suspension until complet- ing any remaining credit hours. The law society will monitor compliance by conducting 500 audits of lawyers and 25 audits of paralegals each year. That will involve written requests for proof of completion. Ontario Bar Association vice president Lee Akazaki says the organization is happy with the flexible approach the law society has taken. "One of the chief issues that we were concerned about was See Change, page 5 Thinking Globally 7 Bankruptcy Woes 8 Focus On Immigration Law Quote of the week "Don't forget that this government has made it a deliberate policy to reach out to the ethnic communi- ties. If you've ever looked at [Citizenship and Immigration Minister Jason] Kenney's web site, there's not a Vietnamese noodle festival or perogy fest he hasn't invited himself to." — Robert Young, Sullivan Festeryga LLP, See Analyzing, page 9 3

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