Law Times

June 6, 2016

The premier weekly newspaper for the legal profession in Ontario

Issue link: http://digital.lawtimesnews.com/i/687723

Contents of this Issue

Navigation

Page 0 of 15

Minor marks two years as treasurer BY ALEX ROBINSON Law Times A s a self-described "type A personality," Janet Minor says there were big accomplishments during her term as Law Society of Upper Canada treasurer — but also a number of initiatives that she would have liked to see final- ized. Goals achieved? She lauded the law society's work to "open up" and engage more with the public during her term. Minor says she has worked to limit the number of in-camera items in the LSUC's Convocation meetings . A large part of the engagement initiatives she pursued during her time as treasurer involved speak- ing with aboriginal communities and their leaders in various parts of Ontario. Goals yet to be realized? A racialized licensee working group, which was created as part of the LSUC's commitment to ensure more diversity in the pro- fession, was one such initiative that she particularly wanted to see finalized. "There is always challenges that don't entirely work out the way one might have wanted or in terms of speed. That's just part of the political process," she says. "I'm sad to leave some of that as I would like to still be a part of things, but it's also kind and fair for someone else to contribute new blood, new thoughts." In terms of racialized licensees, the LSUC first initiated the work- ing group in 2012 to determine is- sues faced by racialized licensees and to figure out how to tackle those issues. The group released a report in 2015 saying the law society could be part of a turning point to advance more diversity in the profession and the working group was expected to provide a course of action in a final report that fall. Lai-King Hum, the chair- woman of the Roundtable of Diversity Associations, lauded Court confirms right to sue for unpaid condo fees BY ALEX ROBINSON Law times A recent Court of Appeal decision has confirmed condominium corporations can recover unpaid fees in court even if they fail to register a lien against an owner, lawyers say. The court dismissed the submission of Ottawa lawyer Claude-Alain Burdet, who argued that Carleton Condominium Cor- poration did not have the right to sue him for nearly $300,000 in unpaid condomini- um fees from a unit he owned in an Ottawa building. Burdet claimed Carleton Condomini- um Corporation's only recourse should be to register a lien, but the court ruled against him, saying condominium corporations also have the power to sue to recover unse- cured arrears under a section of the Con- dominium Act, 1998. "It cannot have been the intention be- hind the Condominium Act, 1998 that if a condominium owner fails to pay common expenses and for some reason the corpora- tion does not register a lien, the corporation is powerless to recover arrears and the other owners must bear the consequences of the defaulting owner's non-payment," the deci- sion said. "While the lien provisions offer an effi- cient enforcement mechanism, the Act does not specifically provide that a corporation cannot also sue to recover judgment." The Condominium Act requires own- ers to pay common expense fees to the condominium corporation, and if they fail to do so, corporations can register a lien within three months that the arrears start to amass. Condo lawyers say the decision is sig- nificant because it confirms that right of condominium corporations to secure ar- rears even if they have not registered a lien. "If for some reason you don't lien with- in the three-month period, you still have recourse and can go after a unit owner through the courts," says Denise Lash, a Toronto condo lawyer. "Just because you haven't liened doesn't mean you lose your right to collect those common expenses from that unit owner." In 2009, Carleton Condominium Cor- poration first started its legal action against Burdet and a group that owned 21 units in the Ottawa building. The corporation registered liens against 16 of those units in 2005 and registered liens against five other condos in 2009, says Nancy Houle, of Nelligan O'Brien Payne LLP, who represented the condominium corporation in the case. "One of the reasons for drafting the claim in such a way was to ensure that the corporation could obtain relief — via a judgment — even if the liens were not val- id," Houle says. "Fortunately, at the end of the day, all ex- isting liens were found to be valid." Houle and her colleagues successfully argued the corporation had the right to sue, citing s. 136 of the Condominium Act, which states, "Unless this act specifically provides the contrary, nothing in this act restricts the remedies otherwise available to a person for the failure of another to per- form a duty imposed by this act." On the first day of trial, counsel for the appellants said none of the defendants owned units in the building anymore, ac- ROWBOTHAM RULING Legal Aid's income cut-offs out of line, says judge P5 ACQUITTED ACCUSED Not guilty, but still suffering P7 FOCUS ON Mobile Technology P8 See Results, page 2 See It's, page 2 PM #40762529 $5.00 • Vol. 27, No.19 June 6, 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 Denise Lash says a recent ruling is important because it confirms the right of condominium corporations to secure arrears even if they have not registered a lien. Photo: Robin Kuniski • 40 issues a year covering Ontario's legal landscape • FREE digital edition and unlimited online access to past issues • FREE Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec t7PM/P +VOF Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec t7PM/P +VOF Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W Subscribe to Law Times today for $199*

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - June 6, 2016