Law Times

PAGE 2 NEWS September 8, 2008 • Law times Judge's conduct in murder trial scrutinized Continued from page 1 the committee, allowed the ap- peal decision as evidence. He said the committee will later decide what weight to give it. Paliare also objected to Cosgrove heard in which the AG alleges the judge showed hostility toward the Crown. That prompted an outburst Finch's decision to allow infor- mation regarding other cases from Paliare, who suggested the inquiry was adopting a "shovel theory of evidence." Paliare asked, "How am I supposed to defend this case?" adding, "This can't be part of the process." Paliare said Cos- grove dealt with "hundreds" of cases involving the Crown, and suggested he be allowed to pres- ent all of them as evidence. "The cases are simply a fact," said Cherniak, adding they may be relevant in terms of the accusa- tion that Cosgrove adopted a sus- picious attitude toward the Crown and government agencies. Cosgrove had worked to prevent the inquiry committee from continuing. The commit- tee stopped in 2005 when the judge challenged the consti- tutionality of s. 63(1) of the Judges Act, which permits a provincial attorney general to request an inquiry into the conduct of a judge without an initial screening by the CJC. The Federal Court agreed with Cosgrove's position and ruled the law unconstitutional in 2005. But a Federal Court of Appeal decision last year overturned the lower court's decision, backing the attorney general of Canada's position. The Supreme Court of Can- ada dismissed Cosgrove's ap- plication for leave to appeal in November 2007. Cosgrove then applied to the Federal Court for judicial review after the CJC inquiry committee ruled in May that it would wait until the inquiry got underway to hear a motion from Paliare. The motion, according to the Federal Court decision, stated that the conduct alleged against Cosgrove "is not capable of sup- porting a finding of judicial mis- conduct within the meaning of the Judges Act," and that "the committee should decline to proceed with the inquiry." The court dismissed that application for judicial review in August. Cosgrove — who Paliare de- scribed as a "judicial workhorse" — is set to retire from the judi- ciary in December 2009. Paliare said the judge hopes to continue working as a judge until then, adding, "It defines his life." The CJC inquiry commit- tee is made up of Finch, Chief Justice of Nova Scotia Michael MacDonald, Chief Justice of the Court of Queen's Bench of Alberta Allan Wachowich, Mc- Carthy Tétrault LLP Ontario regional managing partner Kir- by Chown, and Ottawa's Nelli- gan O'Brien Payne LLP found- ing partner John Nelligan. The inquiry is to wrap up no later than Sept. 17. Once the committee finishes its investiga- tion, it will report to the CJC. The council will use that infor- mation to consider whether or not to issue a recommendation to the federal minister of justice that Cosgrove be removed from office. It would then take a joint resolution of Parliament for the judge to be ousted. LT 'highest possible fee' Lawyer sought Continued from page 1 tractual relations between Ms. Crossen and Ms. Garfin," according to the judgment. Macdonald's reasons included an analysis of factors from the 1985 Untitled-12 1 9/3/08 2:23:08 PM case Cohen v. Kealey & Blaney, in which the Court of Appeal consid- ered what's applicable to an assessment. In terms of the legal complexity of the case, Macdonald found September Specials Canadian Commercial Reorganization: Preventing Bankruptcy Richard H. McLaren Interest: Principles for the Legal Profession Conflicts of M. Deborah MacNair that Garfin "lost sight of the fact that her client was in extremely frail health and that Mr. Mirkopoulos had the ability to meet the reason- able needs of a spouse, coming from a very short marriage." The judge found that Garfin "demonstrated responsibility but she was inconsistent in her availability to Ms. Crossen." A number of dock- eted items could have been dealt with by a law clerk, she said. "I find that Ms. Garfin was conflicted because she saw Mr. Mirko- poulos as a very wealthy person with seemingly endless resources to participate in the protracted litigation," wrote Macdonald. The judge also found that many of the costs Garfin claimed wouldn't have been necessary if "extensive negotiations" took place after offers came in from Mirkopoulos. Macdonald found that Garfin's answer and counter-petition were "detailed and comprehensive." But, she went on to write, "[Garfin] was blinded by her pursuit of Mr. Mirkopoulos, whom she knew to be very wealthy. By doing so, she lost focus of the fact that Ms. Cros- sen desired an early resolution because she wanted to get on with her life or, as she repeatedly put it, she 'wanted her life back.'" The judge found that Garfin "achieved good results on the in- terim interim [sic] support motion." Macdonald, finding that Mirkopoulos always planned to pay Gar- fin's account after it was assessed, agreed with Crossen and Mirko- poulos' belief that the legal fees were "excessive." "Ms. Crossen is particularly adamant that Ms. Garfin was moti- Cause Termination, Damage Control: An Employer's Guide to Just Second Edition Malcolm J. MacKillop, James G. Knight and Kerry Williams Lawyers' Guide Lawrence S. Rosen, Frank M. Vettese and Jim Muccilli Understanding Accounting: The vated to maximize time spent in order to achieve the highest possible fee for herself. I agree with this statement," wrote Macdonald. On top of assessing Garfin's final account, or alternative claims for damages, "with a blunt pencil at $50,000," Macdonald dis- missed her claims for fraud, collusion, and conspiracy; and found that Garfin's claim for damages for intentional interference with contractual relations was not proven. Macdonald also refused to declare that Crossen and Mirkopoulos colluded to defraud Garfin of her legal fees. "The evidence is to the contrary," wrote the judge. "Both Mr. Mirkopoulos and Ms. Crossen knew that there were outstanding legal fees owed to Ms. Garfin at the time of their settlement discussions. Mr. Mirkopoulos always took the position that he would contribute to Ms. Garfin's legal fees after they were assessed." Counterclaims also were dismissed. Law Times' attempts to contact Mirkopoulos and Crossen were unsuccessful. LT www.lawtimesnews.com 8/26/08 10:21:30 AM

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