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October 26, 2015

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Defence lawyers unhappy with Ritchie ruling BY NEIL ETIENNE Law Times hile the Ontario Judicial Council has released limited details about a 2012 complaint against Ontario Court Justice John Ritchie, some lawyers remain concerned about the con- tinued secrecy surrounding the case amid an ongoing grievance about how he treats the defence position in his rulings. "In every situation I've been before him, he's convicted — and that's not to say in some circum- stances the evidence wasn't there — but what's not right is not getting a fair shake," says Toronto defence lawyer Sam Goldstein. "It erodes that confidence in justice we hear about so much. But I think any defence lawyer would say you can't win in front of Justice Ritchie." Goldstein is among the defence lawyers concerned about the out- come of the Criminal Lawyers' Association's complaint against Ritchie and the Oct. 14 decision from the judicial council dealing with disclosure of it. "The public has to be protected both from crime and from the state, and allowing Justice Ritchie to continue to do what he's doing does neither," he says. Besides complaints from law- yers appearing before Ritchie over the years, appeal judges have also taken his rulings to task. They in- clude Superior Court Justice Anne Molloy, who in 2003 found he had provided identical, "boilerplate" comments instead of indicating his reasons for finding some wit- nesses not believable. The Oct. 14 decision from the judicial council stems from an early February 2012 complaint filed by the Criminal Lawyers' Associa- tion against the judge that alleged he had failed to conduct proceed- ings in a judicial manner. After an investigation by a subcommittee of the Ontario Judicial Council, the complaint proceeded to the chief justice of the Ontario Court of Jus- tice for review on the condition that the judge was willing to take part in educational courses. In July 2014, the Toronto Star received information from an un- identified source about the matter and the newspaper was able to con- firm with Ritchie that a complaint THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS. NEW EDITION Perfectbound Published December each year On subscription $80 One time purchase $83 L88804-764 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 or a 30-day no-risk evaluation More detail and a wider scope of legal contact information for Ontario than any other source: • Over 27,000 lawyers listed • Over 9,000MBXȮSNTBOEDPSQPSBUFPGȮDFTMJTUFE ȕ'BYBOEUFMFQIPOFOVNCFSTFNBJMBEESFTTFTPGȮDFMPDBUJPOTBOEQPTUBMDPEFT Untitled-3 1 2015-10-21 10:53 AM Counsel shortage a dilemma for defendants Parties struggling to find lawyers as class actions go global BY JULIUS MELNITZER For Law Times hen Koskie Minsky LLP, Sotos LLP, and Siskinds LLP decided to launch a $1-billion class action al- leging that a coterie of the world's largest financial institutions had conspired to rig foreign-exchange markets using electronic chat rooms with names such as "The Car- tel," "The Bandits Club," and "The Mafia," they felt obliged to sue 49 defendants. The list of defendants reads like an all-star team of financial institutions and includes the Royal Bank of Canada, Bank of America, The Bank of To- kyo Mitsubishi, Barclays Bank, BNP Paribas Group, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, HSBC, JPMorgan Chase & Co., Morgan Stanley, Royal Bank of Scotland, Société Générale, Standard Chartered, and UBS. It's not at all clear how many defence firms they'll need. But the lengthy list of defendants, virtually all of whom would be seeking representation from blue- chip law firms, illustrates a problem that could become more common as class actions increasingly take on not only a cross-border but also a global hue. The problem is the relatively small size of Canada's legal market. "We sued subsidiaries as well as the parent compa- nies, and it may be that some of the subsidiaries will need separate counsel," says Kirk Baert of Koskie Min- sky LLP. "There are many great class action defence firms in Canada, but I'm not sure there are 49 of them." In fact, it's clear that there aren't. "There are probably about 20 firms in our mar- ket who are experienced in large-scale, multijuris- dictional class actions," says Chris Naudie of Osler Hoskin & Harcourt LLP. "It's a uniquely Canadian issue because our legal market is so much more con- centrated than the U.S. market." Among other things, that means many of the firms may be primary litigation counsel for more than one of the defendants. "When class actions arise, it's not uncommon for law firms to be contacted by multiple established cli- ents," says Naudie. "That leads to certain internal deci- sion-making processes that can be hectic." Wendy Berman of Cassels Brock & Blackwell LLP describes the process as "getting the long knives out" as lawyers press the firm to take on their particular clients. Aggravating the situation is the fact that the 20 or so firms that have experience in large-scale class action defence tend to specialize in certain areas, such as se- curities, competition or intellectual property law. "So if you have an intellectual property case, for ex- ample, you may have no more than five firms that are experienced in that subject matter," says Naudie. But Berman's partner at Cassels Brock, Glenn Za- kaib, says that's not necessarily a problem. "When we're working on a particular class action, we regularly draw on solicitors in our firm who are ex- perienced in the area," he says. Naudie also points out that the Canadian legal market has deep expertise in litigation generally. "National class action experience is helpful, but cli- JUDICIAL SELECTION Trudeau should fix long-troubled process P7 FOCUS ON Trusts & Estates Law P8 'Clients can't be as conservative as they might have been in the past when choosing class counsel,' says Wendy Berman. See Case, page 5 See Joint, page 5 'Surely, the public has the right to know,' says Paul Burstein. PM #40762529 TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM $5.00 • Vol. 26, No. 33 October 26, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES W W ELECTION DEFEAT Taman vows to run again after Ottawa loss P2

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