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September 8, 2008

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McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 www.mckellar.com ckellar_LT_Jan14_08.indd 1 $3.55 • Vol. 19, No. 271/8/08 3:03:02 PM Inside This Issue 3 Women In Law 7 A Better Way 9 Focus On Class Actions Quote of the week "It is a far bigger societal issue than I thought when we pursued Winners/HomeSense. I've developed a hardened attitude to it since then. Some people are affected a great deal by fear of identity theft and use of credit card information. It is a huge disaster for some of my clients — a constant worry." — Tony Merchant, lawyer, Merchant Law Group LLP see Crusading, page 10 Covering Ontario's Legal Scene exedge_LT_Sep8_08.indd 1 September 8, 2008 ntario Superior Court Justice Paul Cosgrove should have handled a 1997 murder case differently, but without the benefit of hindsight and facing an "extraordinary" set of circumstances did the best he could on a matter he was unpre- pared for, says his lawyer. In an opening statement at a Canadian Veteran judge faces removal O Cosgrove admits 'mistakes' but defends actions BY ROBERT TODD Law Times career could have prepared him for the Elliott case. He noted that the judge would have ben- efited from subsequent decisions from appeal courts on improper stays of proceedings. Paliare said there is no evidence that Cos- Paliare said Cosgrove admits nothing in his Judicial Council inquiry last week, lawyer Chris Paliare argued that the 24-year vet- eran judge was ill-equipped to deal with the 1997 R. v. Elliott murder trial. Cosgrove stayed proceedings in the high-profile case in 1999, citing what he considered over 150 Charter breaches by the Crown and police, including unreasonable delays. Paliare said Cosgrove "recognized that he made mistakes, and in retrospect he could have handled differently many of the situa- tions he faced." The Ontario Court of Appeal overturned Cosgrove's ruling in Elliott in December 2003, ordering a new trial, at which Julia El- liott pleaded guilty to manslaughter and re- ceived a seven-year sentence. In April 2004, then-Ontario attorney gener- 1-888-539-3343 (1-888-LexEdge) 9/4/08 4:24:09 PM grove's decisions in the case were made in bad faith. He said the judge was forced to make a series of "novel and complex" rulings on the "extraordinary" case, and has expressed sym- pathy for the victim's family. Paliare also criticized the Ministry of the al Michael Bryant requested a CJC inquiry into Cosgrove, alleging his conduct on the case hurt public trust in the administration of justice. The accusations Cosgrove faces are unlike most of the eight other CJC inquiries since 1990 into the conduct of judges, said Paliare. The 73-year-old judge and former federal and municipal politician is not accused of uttering insensitive remarks, committing a criminal act, sitting on a case in conflict of interest, or hear- Justice Paul Cosgrove is battling a complaint lodged by former attorney general Michael Bryant. ing a case while drunk. Rather, the committee must ponder what went into a series of judicial decisions Cosgrove made during the two-year criminal trial, suggested Paliare. Judges are answerable only to their own con- sciences and appeal courts, he said. (Aaron Harris/Toronto Star) merous legal errors as to the application of the Charter," as well as issuing "findings of miscon- duct against Crown counsel and police officers that were unwarranted and unsubstantiated." Independent counsel to the inquiry Earl Cherniak said the Court of Appeal ruling must be included in evidence, as it's referenced in the attorney general's complaint letter. After an objection from Paliare, British Co- lumbia Chief Justice Lance Finch, chairman of have the Court of Appeal benefit of hind- sight," he said, adding that materials such as the Court of Appeal ruling and ethical guide- lines for judges have no relevance. The appeal court said Cosgrove "made nu- after a Superior Court judge found a lawyer "lost focus" that her client wanted a quick resolu- tion, not a big pay day from her wealthy ex-husband. "This lengthy and protract- ed litigation was not the right answer for this couple," wrote Superior Court Justice Ellen Macdonald in her decision in the case involving Toronto sole practitioner Susan Garfin. "It is incumbent on experi- enced solicitors to conduct what is, in effect, a cost-benefit analysis of every case," said Macdonald. An office administrator at Gar- legal bill of over $200,000 for a divorce case has dwindled to $50,000 Legal bill slashed to $50,000 from $200,000 A BY ROBERT TODD Law Times fin's law office tells Law Times the lawyer would not comment on the case, suggesting she was consider- ing an appeal of the ruling. Garfin, who has practised family law since 1983, went to the court to collect about $218,000 in legal fees in a case involving divorcing couple Nikolaos Mirkopoulos and Julie Crossen, both of Toronto. The bill covered work between Jan. 9, 2004 and March 28, 2007, according to Macdonald. An alternate claim filed by Garfin was for fraud, collusion, and conspiracy. Crossen and Mirkopoulos mar- TPLawTimes1CBlue fin 8/22/06 11:46 AM Page 1 ried in July 2001 and separated in August 2002, according to the judgment. Mirkopoulos is a "very successful businessman and is de- scribed by Ms. Garfin as being 'ex- ceedingly' wealthy, with interests in valuable property and several corporations," said the judge. The judge noted that Crossen was "impecunious and in a state of very compromised health" during the litigation. Crossen signed a retainer agree- ment with Garfin in September 2002 for work based on an hourly rate of $300, according to the judgment. An undated, further re- tainer was agreed to in June 2004 that raised the fee to $330 an hour. Crossen terminated the re- tainer March 7, 2007, and signed a separation agreement — without legal advice or reading the agree- ment — March 30, 2007. The agreement included a lump-sum support payment of $33,000. Macdonald noted that Garfin said she didn't bill monthly in the Attorney General for filing its complaint some four and a half years after Cosgrove ordered the stay of proceedings. Paliare noted that the ministry never issued a complaint about Cosgrove hearing cases involving the minis- try from the time the stay was ordered to the filing of the complaint. Paliare asserted that the only evidence the committee should consider in its investigation is a transcript of the Elliott case. "Otherwise it's unfair, because he didn't See Judge's, page 2 case because there was no money in her trust account to pay GST. But, the judge said, "this could not have been true because Ms. Garfin was retaining in trust, in increasing amounts, a portion of the $4,000 monthly spousal sup- port that was being paid to Ms. Crossen, pursuant to an order by Justice [Victor] Paisley, effective September 30, 2003." In addition to claims for legal fees, disbursements, and GST, Garfin's claims included nearly $218,000 as damages for fraud, collusion, and conspiracy; a series of declarations, such as one void- ing the transfer of money or assets between Crossen and Mirkopou- los; and damages against Mirko- poulos for nearly $218,000 "for intentional interference with con- See Lawyer, page 2 TitlePLUS title insurance and you, together we make real estate real simple. Visit titleplus.ca or call 1-800-410-1013 for more information title insurance.* * Underwritten by Lawyers' Professional Indemnity Company (LAWPRO® Law Times – Backyard (Front Page Base Bar 1C) www.lawtimesnews.com ). Contact LAWPRO for brokers in Manitoba, Saskatchewan and Alberta. ® Too bad their neighbours have as much right to it as they do. Protect your clients. Recommend TitlePLUS® NICE BACKYARD. Registered trademark of Lawyers' Professional Indemnity Company.

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