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May 10, 2010

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Law Times • may 10, 2010 Why didn't Jaffer register as lobbyist? Jaffer affair is way behind the news- papers. That's where the trouble keeps spreading like a Louisiana oil spill. Nobody knows where it's going T next or how long it will last, but ev- erybody it touches gets tainted. We're up to six cabinet ministers, parliamentary secretaries, and federal agencies now. Who knows how many more will come about. Not a single one of them thought to tell Prime Minister Stephen Harp- er: "Houston, we've got a problem. Jaffer came in to see me and he's not registered as a lobbyist!" NDP Leader Jack Layton asked in the Commons: "Would all the cabi- net ministers involved please stand up?" Only Transport Minister John Baird rose to his feet, but that was only to insist that Harper isn't involved. Some of the bureaucrats being dragged into the mess are furious at the politicians. They're starting to talk and bring out documents. Who will protect the nesting birds on the government benches? But the real question remains: Why did Harper dump Guergis from cabinet? Why did he call in the RCMP to investigate mysterious al- legations about her? Why didn't he just say he wanted to investigate a former caucus member who has al- legedly been lobbying his cabinet ministers? So far, it appears Guergis is only marginally involved in her hus- band's business schemes. She lent Jaffer her BlackBerry, her office, and her limousine. So it's govern- ment equipment. But do you call in the Mounties for that? Was she tossed out for some- thing else? Was Harper afraid Jaffer was breaking lobbying rules? This isn't the time to blame a woman for a spouse's behaviour. After losing his Edmonton seat in the last election, Jaffer teamed up with former government lawyer Patrick Glémaud, who had run and lost as a Conservative candidate in an Ottawa riding. They made a good team. Glé- maud knew environmental technol- ogy; Jaffer, as former Conservative caucus chair, had good contacts in government, not to mention the fact that his wife was a cabinet minister. The Commons committee is having a field day at Jaffer's ex- pense, taking turns calling him a liar to his face. Conservative MPs reacted unex- pectedly. Instead of defending Jaf- fer as one of their own, they turned on him. Jaffer mumbled an apology of sorts but kept on spinning flimsy excuses that MPs continued shoot- ing down like fish in a barrel. It didn't help that they had pho- tocopies of the web site for Jaffer and Glémaud's company, Green Power Generation Corp., with the nice Conservative party logo in the corner. Talk about getting the mes- sage across. Jaffer, in fact, bragged in his deal- ings with Toronto businessman Na- zim Gillani that he had "ongoing dialogue with and valuable connec- tions" to the Harper cabinet. he House of Commons com- mittee poking around the Helena Guergis and Rahim The Hill By Richard Cleroux MPs are not fools. They deal with lobbyists every day. It sounded like lobbying to them. They kept asking why Jaffer hadn't registered as a lobbyist as re- quired by law. Jaffer kept pleading ignorance, which is never a good idea when giving testimony. Actually, there was a good reason. Had Jaffer registered as a lobbyist, his wife could have been in conflict of interest. Better not to register and plead ignorance when confronted. But were they lobbying? They say they just went around Parliament Hill asking for information from government officials. How much did they charge their clients? Not a cent for a whole year, they replied. It sounds unusual but it's not if you read the lobbyist registration law. It states that lobbyists aren't re- quired to register if they're not paid. But when your wife makes $224,500 a year, maybe you don't have to charge for your services. Jaffer and Glémaud's schemes weren't scams. They made environ- mental sense. One project they brought to Ot- tawa would remove mercury from a coal-burning process. Mercury is toxic, especially to brain development in young children. Another proposal was a bio-dryer project that would remove moisture from vegetable remains and human waste and turn it into valuable fertil- izer. It's a useful idea. Another scheme sounded a bit iffy to the bureaucrats: using trees dam- aged by pine beetles in British Co- lumbia as biofuel in Ontario. "Not really pine beetle territory," a public servant wrote in the margin of the proposal. Another project proposed involved installing solar panels on the roofs of federal buildings in Ontario. It sounds good but not without public tender. The office of the minister of public works pushed hard for it; the bureau- crats stood firm and said no. The affair is turning into a special type of embarrassment for the Harp- er Conservatives because it resembles the bad old days of the Liberals' sponsorship scandal. The Liberals put aside $100 mil- lion to save Canada from the sepa- ratists. The Conservatives' Green Energy Fund is 10 times bigger at $1 billion. Three cabinet ministers, Baird, Lisa Raitt, and Christian Paradis refuse to testify. So does Baird's parliamentary secretary, MP Brian Jean, who dealt directly with Jaffer. Opposition MPs keep asking what they're hiding. Strangely, Guergis and Jaffer have agreed to testify before the committee on June 9. It should be quite a show. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. COMMENT PAGE 7 Conflicts of interest: An ever-present danger for counsel should be read carefully and its reasons adhered to as the facts are ones that are very easy for anyone who practises law to get caught up in, however innocently. Rosenstein v. Plant is a decision of Jus- A tice Jennifer Blishen dealing with the is- sue of an alleged conflict of interest by counsel in which there had been no prior retainer or even an attempt to enter into one for legal services. In this case, husband Todd Kiley Plant, also a family lawyer, was ac- quainted with fellow counsel Murray Ages. He was later retained by Plant's wife, Char- lene Gail Rosenstein. As Plant is also a lawyer, it's natural that he would have many occasions to speak with Ages, who likely wouldn't think much of such conversations, especially as they may relate to creating a potential solicitor-client relationship or one resembling such an ar- rangement. It should be made clear at the outset that the two alleged communica- tions happened some time before Rosen- stein retained Ages. The parties had separated and settled all issues by way of a separation agreement in 2007. The current proceedings involved a variation of the agreement as it pertained to child support and an alleged lack of fi- nancial disclosure by Plant of his income for purposes of calculating payments. Last summer, Rosenstein retained Ages, who wrote to Plant's counsel advising of his retainer and seeking information. It was then that the conflict issue came up. Plant alleged that in 2006, prior to separation, he had run into Ages and had some discussions pertaining to his pay structure as well as child support issues. He claimed that at that time, Ages pro- vided him with legal advice. Ages denied doing so and took the position that the alleged advice was something he wouldn't have given to anyone. The second material allegation relates to a conversation at the courthouse, also prior to any retainer with Rosenstein, last spring. Plant alleged he had provided rel- evant income information to Ages dur- ing this conversation. There was nothing in any of the allegations suggesting Plant had retained Ages or was even consider- ing doing so. As a result, there was no reason for Ages to keep notes or a de- tailed recollection of any discussions. Editorial Correspondence LEAVE REAL ESTATE AS IT IS Everyone knows the Canadian real estate industry is at its all-time best and that the real estate sector helped us to fight the reces- sion. Now the Competition Bureau is mess- ing up this smoothly running system by let- ting anyone access the MLS system instead of involving a professional. Letting anyone access it and list their house amounts to wel- coming more frauds and lawsuits. Comment posted on lawtimesnews.com by Sam about "Competition Bureau v. CREA: What does it mean for real estate lawyers?" www.lawtimesnews.com THE TRAGEDY OF LEGAL SERVICES The sad state of legal services in Canada is indeed a tragedy. Espe- cially sad is the permanent creation of third- and fourth-class (paralegal, legal aid, and pro bono) legal services to the disadvantaged strata of society. The rule of law is the foundation of justice. A lack of access to equal representation in trials will create a division in society be- tween those who have and those who don't have access to justice. It is an issue of con- cern. It is criminal to create pro bono services and unconstitutional to allow paralegals in courts to substitute lawyers. Comment posted on lawtimesnews.com by Ron about "Lawyers, paralegals mobilize for skirmish at law society AGM." very interesting case came out of Ottawa earlier this year dealing with conflicts of interest. This case It's very easy to put oneself in Ages' shoes. Quite possibly, he believed he was simply exchanging pleasantries and perhaps sympathizing with a colleague about his personal situation while pro- viding generic information. Ages took the position that whatever Family Law By Marta Siemiarczuk conversations he may have had with Plant were in fact generic in nature and that he didn't recall receiving any rel- evant or confidential information that would create a conflict of interest. Un- fortunately for him, it seems his lack of specific recollections is what ultimately led Blishen to find that a conflict of interest did exist as Plant's affidavit evi- dence was very spe- cific about the nature of the information imparted. Based on that evidence, which the judge was quick to point out was untested un- der cross-examination, and applying the Supreme Court of Canada's test in Mac- Donald Estate v. Martin, Blishen found that confidential information was in fact imparted to Ages by Plant. Balancing the public interest with respect to a perception of conflict and Rosenstein's interest in hav- ing counsel of her choosing, Blishen found that even though Ages may not recall any of the specific information, the perception of a conflict existed nonetheless and ordered him removed as counsel. While this case doesn't alter the law on conflicts of interest in any way, it's an im- portant reminder, particularly on these types of facts, of how easy it is to get into such a situation. In all likelihood, Ages probably didn't have any information he could have used to further Rosenstein's case; however, the perception of conflict still exists, and the law is clear that nei- ther a formal retainer or even a meeting to discuss a potential retainer need to be present to create a solicitor-client-like re- lationship. As counsel, especially for the majority of us who practise in smaller and more closely knit legal communities, it's important to always remain vigilant about the discussions we have with oth- ers, including lawyers, as the potential for a conflict of interest to arise is ever present. LT Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Kathleen Chapman & Asso- ciates in London, Ont. She can be reached at msiemiarczuk@gmail.com.

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