Law Times

May 2, 2016

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Firm must pay $400,000 legal bill, even if contract nixed BY MICHAEL MCKIERNAN For Law Times A ccountancy firm BDO Dunwoody faces a $400,000 legal bill af- ter Ontario's top court ruled it must pay its former law- yers the fees run up under a con- tingency agreement, even if the law firm ultimately repudiated the contract. BDO hired lawyers from the Windsor, Ont. office of interna- tional law firm Miller Canfield Paddock and Stone LLP back in 2007 to sue the Canada Revenue Agency and the federal Depart- ment of Justice for wrongful prosecution on behalf of two em- ployees who fought off criminal charges related to their work. The retainer provided for a contingency fee to the law firm of up to 25 per cent of any recovery. Alternatively, if BDO decided "to cancel" the law firm's services for any reason, it agreed to pay for all the law firm's billings to that point. However, solicitor-client rela- tions deteriorated when the claim was largely struck out on a motion by the defendants in 2012, and Miller Canfield informed BDO it was incapable of carrying out the appeal. The law firm recommend- ed appellate counsel, but neither it nor BDO wanted to carry the cost of hiring him. A superior court judge found the law firm's refusal to conduct the appeal amounted to repu- diation of the contingency agree- ment, and it absolved BDO from its responsibility to pay for Miller Canfield's fees to that point, which amounted to $427,892. "I do not believe it can be said that BDO 'cancelled' MCPS's ser- vices. Rather, MCPS refused to provide the services it had con- tracted to provide. BDO accepted the refusal, and the contract was at an end," wrote Ontario Superior Court Justice Pamela Hebner in her Aug. 7 decision last year. But in its April 21 judgment, the Ontario Court of Appeal or- dered BDO to pay up, ruling that even if Hebner was right about the repudiation, the termination clause was still engaged. BY SHANNON KARI For Law Times T he ongoing prosecution of three Toronto police officers accused of sexual assault is the latest high- profile case where there is a dispute over whether details in an information to obtain should be subject to a publication ban until the end of the trial. Lawyers representing the officers and var- ious media outlets are scheduled to argue a defence request for a publication ban on May 3 in Ontario Superior Court. A number of rulings in recent years on this legal issue have highlighted differences of opinion among some of the most senior Superior Court judg- es in the province. Toronto police officers Leslie Nyznik, Joshua Cabero, and Sameer Kara are all facing charges of sexual assault causing bodily harm as a result of an off-duty incident last year at a downtown hotel. The alleged victim is a ci- vilian employee of the Toronto police and a member of the same union as the accused. The officers are represented by Harry Black, Michael Lacy, and Peter Brauti, and a date has yet to be set for trial. They are seek- ing a publication ban on any details in the ITO that relate to specific allegations against their clients. Some of these details are also included in a motion filed by Crown attorneys Philip Perlmutter and Susan Reid, seeking to have Lacy and Brauti removed for an alleged con- f lict of interest. The Crown is arguing the conf lict arose when Lacy recently joined as a partner at the firm of Brauti Thorning Zi- barras LLP. The conf lict motion has yet to be heard and a publication ban was imposed by Jus- tice John Macdonald on certain details in the Crown's notice of application. The "un- tested, one-sided, salacious information" in the documents would pose a "real and sub- stantial risk to trial fairness" if made public before trial, wrote Macdonald in his April 26 ruling. Iris Fischer, a partner at Blake Cassels & Graydon LLP, says an ITO can be distin- guished from other types of pre-trial infor- mation. "It is an affidavit that has resulted in a court order. Once executed, it is something that should be scrutinized by the public to ensure there has not been an abuse," says Fischer, who frequently acts for the media. More than three decades ago, the Su- preme Court found that there is a presump- tion of public access to a search warrant once it has been executed. In 2005, it added that any restrictions to public access must satisfy the Dagenais/Mentuck test. What remains unsettled is the extent of the right to publish PUNITIVE DAMAGES Insurers must pay $175,000 P3 DISCIPLINE FOR JAIL VISIT Lawyer appeals suspension for showing LSUC card P4 FOCUS ON Aboriginal Law P8 See BDO, page 2 See Jurors, page 2 PM #40762529 $5.00 • Vol. 27, No.15 May 2, 2016 L AW TIMES & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Follow LAW TIMES on www.twitter.com/lawtimes Iris Fischer says an information to obtain can be distinguished from other types of pre-trial information. A DAILY BLOG OF CANADIAN LEGAL NEWS LEGALFEEDS.CA FEEDS LEGAL POWERED BY Untitled-3 1 2016-04-27 3:46 PM Sarah O'Connor says a recent ruling can be seen as a lesson to lawyers not to take on more than they can handle in contingency fee matters. Should information to obtains be public? Fight for publication ban in police trial

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