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November 3, 2008

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$3.55 • Vol. 19, No. 34 Covering Ontario's Legal Scene New SIU director promises change Ombud report a 'template for improvement,' says Scott BY ROBERT TODD Law Times ment recommendations from a report in which the province's ombudsman called the police oversight body a "toothless tiger." SIU director Ian Scott tells Law Times in an T he new director of Ontario's Special Investigations Unit says he will lead an internal team created to imple- from other SIU personnel, and "sub-teams" may be created to deal with specific issues, he says. "Some are actually relatively easy to ad- interview at the unit's Mississauga headquar- ters that the "ombudsman report response team" will lead the charge in responding to André Marin's scathing 121-page report, ti- tled "Oversight Unseen," within six months. "It won't be like the world has completely turned at that particular point," says Scott. "But my objective and my goal is to have a response to every recommendation, and some may be more a kind of . . . clip in time as opposed to necessarily the end point." Scott's appointment was announced Sept. dress. Some are going to require more long- term operational change, and it may be that at the end of the six months some of the report- ing on particular recommendations will be a work-in-progress," says Scott. The unit has been investigated seven times since its creation in 1990, with major probes conducted almost every five years since 1998, the year George Adams' first report on the SIU, which he followed up on in 2003. Scott says the SIU has been subject to a high November 3, 2008 Inside This Issue 3 Canaries In Coal Mine 6 level of public scrutiny for a pair of reasons. The unit was the first of its kind in Cana- da, he notes, with Alberta only recently creat- ing its Serious Incident Response Team with a comparable mandate. "Because it was always in uncharted water 23; Marin's report was released Sept. 30. At that time Marin told Law Times the SIU is "fearful and frightened, timid and intimidat- ed." His probe found that the unit doesn't work fast enough, fails to fully investigate allegations, is unable to force police co- operation, and employs too many ex-cops. The new director held off on respond- ing publicly to the report until he took the helm from outgoing director James Cornish on Oct. 16, saying through an SIU spokesman it would be inappropriate to do so. Scott says he views Marin's report as "a template for improvement" during his five-year term. But in the short term, Scott is busy preparing to meet the ombudsman's request for a written imple- mentation report within six months of his report's for years, and still is to some degree, it's gone through a series of growing pains," says Scott. The fact that legislation forces the SIU di- SIU director Ian Scott has created an internal team to implement recommendations in ombudsman's scathing report. release. The response team, which Scott says met for the first time last week, will play a key role. He says the response team will be made up of SIU staff including himself, executive of- ficer Paul Cormier, an investigative supervisor, an administrative manager, and a legal counsel. The team will help Scott decide which of the ombudsman's recommendations require input rector to essentially choose a winner in each file it deals with between police and citizens means it will always be fending off criticism from one side, he suggests. "The SIU is always going to be a flash- point. You're dealing with some of the most difficult societal issues a society can grapple with, those being use of force, fatality, and serious injury of our citizens caused by the police or agents of the state," he says. While Scott is at the helm of the SIU at a contentious moment in its history, he says he is motivated by an affinity for the type of work the unit does. For 15 of his nearly 25 years in law, Scott has See SIU's, page 2 Hubby out $5.3 million as SCC passes on LeVan BY ROBERT TODD Law Times man ordered to pay his ex-wife $5.3 million after failing to fully disclose his wealth. It's a disappointing move in the eyes of family law lawyers hoping to get some clear direction on marriage contract disclosure. "I can tell you [this case] has changed the way we practise," says Grant Gold, of McCague Peacock Borlack McInnis & Lloyd LLP, in reference to LeVan v. LeVan. "Financial disclosure has to be made in a way that is not only com- plete . . . but it has to be so completely full that it leaves no doubt that any- one would have any questions about one's financial position." T he Supreme Court of Can- ada has dismissed a leave to appeal application from a Alan Lenczner of Lenczner Slaght Royce Smith Griffin LLP, who represented the husband Richard Bruce LeVan, says the decision is devastating for his cli- ent. Because the value of assets is determined at the time of breakup, and the recent financial crisis has devalued the shares upon which much of LeVan's wealth was based, "He ends up with zero, she ends up with everything," says Lenczner. The wife is owed the $5.3 million equalization payment, and while that amount was based on a time when the family company shares held by LeVan were worth about $18 mil- lion, they are now worth about $5 million because of the recent financial crisis, says Lenczner. "There's no revaluation, so he has to pay her the value on break- up," says Lenczner. Philip Epstein of Epstein Cole LLP, who represented the wife in the case, says LeVan has taught the family law bar an important lesson. "I think it's a lesson the bar is taking seriously," says Epstein. "Le- Van is now a couple of years old and I've noticed an increased vigilance among family lawyers in terms of what they're providing when they negotiate a marriage contract." Gold says that before the LeVan decision, his approach to financial disclosure was to simply announce the value of shares his client owned. But that's not enough anymore, he says, with requests for financial statements now being made, re- quiring the retention of chartered business valuators. "It's caused all of us to be more cautious," says Gold. "I can tell you I know lawyers now who don't want to do marriage con- tracts at all because they're just too concerned about the liability." Judge Launched CJC 9 Focus On Real Estate Law Quote of the week "Land swaps on a whole are not taxable however we have an example where land transfer tax was attributable to relocation costs where one of the parties in a land swap paid the additional relocation costs of the other." — Maria Holder, associate, Fraser Milner Casgrain LLP See Land, page 12 and Court of Appeal gave instruc- tions in LeVan on what disclosure should have been made in the case, Gold was looking forward to getting some direction from the top court on the specific is- sue of whether it's necessary to hire a valuator to establish clients' interests in a corporation. "LeVan's a scary decision for fam- ily law lawyers, and I think every- body's going to say that," says Gold. "We don't know the type of disclo- sure that might be sufficient. So what I think we're doing is throwing every- thing out there and giving as much . . . disclosure as possible. Overkill is better. You're never going to get in trouble for giving too much." The Ontario Court of Appeal in May upheld an August 2006 de- While both the Superior Court cision by Ontario Superior Court See LeVan, page 2 Value your time? Then you'll value our technology! Tel: 416.322.6111 Toll-free: 1.866.367.7648 Industry leader in legal software for real estate, corporate and estates for over a decade

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