Law Times

PAGE 2 NEWS 20 supporters at hearing Continued from page 1 paralegal standing committee during discussions about the LSUC's takeover of paralegal regula- tion. Dray refused to resign, and the panel was dissolved after Kopyto abandoned his motion. Kopyto also complained to the law society about panel chairman Carl Fleck, whom he alleged had violated his neutrality by communicating with the law society's prosecution team without Ko- pyto's knowledge. A second panel was appointed in December 2010. Chaired by Judith Potter, it fell apart after she agreed to recuse herself last month. Kopyto had raised concerns about her campaign for elec- tion as a bencher, in which she committed to halt the "encroachment" by paralegals into areas of law best served by small-firm lawyers. According to LSUC spokeswoman Susan Tonkin, Convocation began allowing non- benchers to serve on panels in 2007, appointing four lawyers and four non-lawyers to the pool "in order to assist in scheduling." Kopyto had no bias concerns about the new panel but he did register his concern about the way they were selected in which the law soci- ety identified him as the subject when inquiring about the availability of eligible panel members. "To have a judge say, 'Yes, I want to sit on Kopyto's case,' it's not the ordinary practice in judicial and quasi-judicial proceedings," he told the hearing. Kopyto argued the panel should adopt a low threshold when considering his request for dis- closure because of the serious consequences for him should he fail in his bid for a licence. "The law society has characterized my requests as a fishing expedition," he told the panel. "There's no expectation on me to know everything they have. If there's fish in the water, why can't I go fishing? It's important to me to have the ammu- nition to fight back." Kopyto also wants the onus reversed in his case to force the law society to prove that he's not of good character. Although he applied to be grandfathered, he says the transition to LSUC regulation meant there was an element of com- pulsion that thereby places the burden of proof on the law society. "I only signed the application because I had a gun to my head," Kopyto said. More than 20 Kopyto supporters braved the inclement weather to pack the law society's sec- ond-floor hearing room last week. One of them, Dalius Butrimas, met Kopyto several years ago when he represented his son in a case against a local hockey association. Butrimas' son alleged his coaches had bullied him. The case eventually settled after a couple of years in the Small Claims Court. "No lawyer wanted to touch that," Butrimas says. "There's no money involved, and it looks very trivial. But it wasn't trivial for my son. Har- ry was there when I needed him and nobody else was there to support me, and this is my way of reciprocating and to say, 'Thank you and now I'm going to be here for you.'" The hearing is set to resume on Feb. 24. "I've got a fighting chance to come out of this and continue what I've been doing for the last 35 years, which is fighting for the rights of women, of minorities, of those without power and influence against those who have power and influence," Kopyto says. LT February 7, 2011 • Law Times Bureau already familiar with CCS Continued from page 1 rate undertakings," says An- thony Baldanza of Fasken Martineau DuMoulin LLP. "I suspect that the bureau concluded it probably couldn't meet the test for an injunction, especially in the face of CCS' offer to hold separate." Banicevic agrees that the undertaking probably obviated the need for an injunction. "But what is unusual is that the bureau didn't require anything more formal than a writ- ten undertaking," she says. The case also has several other interesting features. "The bureau is seeking dis- solution, rather than divestiture, as the primary remedy, and dissolution is something that has never been ordered before," Baldanza notes. Should the bureau succeed, the regulatory risk for deals involving competition issues will balloon. "Buyers and sellers tend to look at post-closing competition risk very different- ly," Baldanza says. "Sellers tend to be very aggressive about closing in the face of such issues, but this case is sending a message to them that simply closing doesn't get them home clear and that they could end up having to return the pro- ceeds and with the business back in their hands." The decision to challenge a transaction that didn't attract mandatory notification is also significant. It follows several recent challenges by U.S. authorities in similar cases. "The bureau may not have selected this case simply because it wanted to deliver a message," Baldanza says. "On the other hand, it is probably not unhappy to demonstrate that non- notifiable mergers are still mergers and subject to the bureau's substantive jurisdiction." It's also likely CCS will raise an efficiencies defence, argu- ing that allowing the merger and keeping the new landfill out of the market is more efficient than letting it operate competitively. Finally, the bureau is seeking an order forcing CCS to provide notice of proposed mergers in the future even when they're not notifiable. Interestingly, the Competition Act doesn't have a specific provision for such a remedy. Arguably, the bureau's aggressive stance may come partly from the fact that it's not unfamiliar with CCS. The company was involved in a predatory-pricing complaint in 2010 and had an abuse-of-dominance matter resolved fairly recently. LT 'The bureau's action is consis- tent with the increased enforce- ment activity we've seen recently,' says Anita Banicevic. Untitled-4 1 www.lawtimesnews.com 1/25/11 1:18:03 PM For more information contact: Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com or Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomsonreuters.com

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