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September 19, 2016

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Page 2 September 19, 2016 • Law timeS www.lawtimesnews.com NEWS and that graduates of the Law Practice Program would not be perceived in the same light as students who secured articling jobs," says MacKenzie. MacKenzie says he would have preferred to see a system in which the law society had more articling positions available. "We've seen over time that firms in certain practice areas and in certain parts of the prov- ince that formerly hired arti- cling students have stopped do- ing that for a variety of reasons," he says. Proponents of the LPP have said it provides a skills-based program that is just as good if not better than the experience articling provides and that it offers opportunities that other- wise would not exist. The program entails four months of course work followed by a four-month placement. The report — which was based on information gathered from surveys and focus groups with candidates and employers — says that LPP candidates have been more diverse than their counterparts in articling. In the program's first year, surveys showed that 33 per cent of LPP candidates identified as racialized, compared to 21 per cent of articling students that year. The report also found that larger percentages of LPP stu- dents were internationally edu- cated, francophone and older than 40. The LPP was first proposed as a five-year program and later shortened to three over concerns the program would become "en- trenched" before it was reviewed. But the shorter pilot has meant that there is not sufficient information to compile statistics concerning employers' views of the program. The committee, however, still felt it had enough information about the program and how it is perceived to make its recom- mendations, which will be voted on at Convocation's November meeting. "The majority of the com- mittee is satisfied that we have enough information now, and we're not convinced that leav- ing it to run two more years will really make any meaningful dif- ference," Wardle says. Wardle stresses that the com- mittee's report left the door open to the development of other ex- perimental programs and that this by no means recommends ending the conversation on re- forming the licensing process. "There continue to be con- cerns about articling and we're going to continue to examine those. It's not as if this is an end to the process," he says. The report recommends that the law society should explore introducing a "three-month abridgement of articling" for candidates who participate in skills training in a law society program. The report also recommends creating what it called a Practice and Procedure Examination, which will replace the bar exam and will be given to candidates before they receive training such as articling. The committee is also rec- ommending a practice skills ex- amination be added to licensing requirements. This would take place after the experiential training was conducted. If approved, both tests would be implemented for 2018-19. These two tests were pro- posed to Convocation in April, but the governing body decided to consider them at the same time as the LPP review. The report praised the exper- tise of the LPP providers — Ry- erson University and the Uni- versity of Ottawa — for having "breathed life into the programs and, remarkably, done so in a very short time," and recom- mended that the resources of each provider be used in future programs. The report noted that both programs expanded the net- works for work placements and created "rigorous programs that provide systematic and consis- tent exposure to all the required competencies." When the LPP was initially approved, the program was ex- pected to attract around 400 candidates in each year. The report, however, said the LPP failed to interest a signifi- cant portion of potential candi- dates, attracting approximately 440 in the first two years com- bined in the English program and 28 in the first two years of the francophone program — the Programme de pratique du droit. The lack of interest has made the program not financially sus- tainable, Wardle says. If Convocation votes to ap- prove the recommendations, Wardle says there are many les- sons that can be learned from the LPP for future licensing pro- grams. "I think it was an experi- ment," he says. "We learned a lot from it. We're going to take that on to the next step. We're not go- ing to leave the licensing process alone. We're going to try to im- prove it." LT Continued from page 1 Lack of interest made program not financially sustainable? Solicitors, who was not involved in the case. "Inform yourself, protect yourself in the agreement." Ronald Bildfell, a Sarnia, Ont. lawyer who represented the Browns on the claim, says such cases can be difficult to prove as the onus is on the plaintiff to prove the seller was aware of the defect at the time of the sale. "It's always incumbent on the plaintiff to prove that there was either actual fraud or sort of turning a blind eye to an exist- ing problem. So it's difficult to get around that factual prob- lem," he says. Bildfell adds that the decision "reaffirms that it's incumbent on the purchaser alleging that there has been a failure to disclose a problem to prove it." The Browns first looked at buying the house in September 2011. The Cassidys, who owned the house since 1983, had some issues with water and mould in the basement in the 1990s. They brought in a contractor in 2002 to fix the problem. When Eric Brown first visited the home to enquire about buy- ing it in 2011, he claimed he asked Cassidy if they had had water problems to which he replied no. Cassidy testified that they had a discussion about past wa- ter problems and what they had done to fix the problem. "My client appeared to be satisfied with the resolution of the past water problem, but I think he didn't apply his mind to . . . [whether] the past water problem [was] totally correct- ed," says Bildfell. In the agreement of purchase, there was no mention of water problems. "Although Mr. Brown testi- fied that it was important to him that the property had not had any water problems, the agreement is entirely silent on that score," Raikes said in the decision. After they bought the house, the Browns hired a contractor to do some work on the house and discovered water and black mould in the basement. They subsequently restored the base- ment. Brown sought damages of $85,100.17, which the Browns said was what they paid for the repair and remediation work on the house after they bought it. Brown also claimed the Cas- sidys were responsible for a deck at the back of the house that was repaired in 2013, two years after the Browns bought the house. Brown said he discovered the deck was not securely connected to the original posts when he stumbled on it that year. Brown did not have an in- spection done on the house be- fore the purchase, which was done in a private transaction, the decision said. Toronto lawyer Jordan Donich says if the Browns had retained a lawyer before they purchased the home, they would have been advised to get an inspection and to protect themselves in the pur- chase agreement. "Hire a lawyer before you need him, and you won't need him at all," says Donich, who is not involved in the case. Raikes found that the Cas- sidys were ignorant of any wa- ter and mould problems that had arisen after they thought they had fixed the problem and, therefore, could not have mis- represented the condition of the house. He dismissed the claim. Grossi says the pace of the housing market at the moment can serve as a deterrent for buyers to conduct an inspection or inject clauses into the purchasers agree- ment that protect them against possible defects in the house. "Unfortunately, I think that in the current market, there is a lot of pressure because of the time constraints and how quick- ly something sells," she says. "People feel they don't have the opportunity to do their due diligence and be informed. If you can't do that, you want to do the alternative, which is protect yourself in the agreement." Grossi says residential real es- tate lawsuits do not often make it to trial and are usually settled out of court or in Small Claims Court. "We don't see a lot of residen- tial real estate matters. A lot of the real estate decisions are com- mercial," she says. Donald Elliott, the lawyer representing the defendant, was contacted and was not available for an interview. LT Continued from page 1 Home inspections advised: lawyer How the legal community in Ontario gets its news Understand cutting-edge legal affairs, discover [OLSH[LZ[UL^ZHUKILULÄ[MYVTL_WLY[JVTTLU[HY` for just 55 cents a day! SUBSCRIBE TODAY AND RECEIVE: • 40 issuesH`LHYJV]LYPUN6U[HYPV»ZSLNHSSHUKZJHWL • FREEKPNP[HSLKP[PVUHUK\USPTP[LKVUSPULHJJLZZ[VWHZ[PZZ\LZ • FREE Canadian Legal NewswireH^LLRS`LUL^ZSL[[LYMYVT[OL editors of Law Times and Canadian Lawyer Subscribe to Law Times today for only $199*! ;VWSHJLHUVYKLYWSLHZLJHSS VY 6YKLYVUSPULH[!^^^SH^[PTLZUL^ZJVTZ\IZJYPIL *Plus applicable taxes @lawtimes *VU[HJ[\ZMVYTVYLPUMVYTH[PVU! *HUSH^`LYSH^[PTLZ'[OVTZVUYL\[LYZJVTc c (JJLZZHMYLLWYL]PL^H[!IP[S`JVTLawTimes-FreePreview 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 t7PM/P Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W ing on ges re- ictions n of the piracy others, d Fari- ight to omised ith the ources, about court. a result e shop. er the e at the the ju- friend, ber of um estic viole viole v nc nce case ce c ce c ce c case case s e cas ce ca e case case case e case se se case se ce case ce case e ca cas case ce c e es Adler. oto: Robin Kuniski Photo: Robin Kunisk Photo: Robin Ku Photo: Robin Kuniski Photo: Robin K hoto: Robin Kuniski k hoto: Robin o: Robin Kun bin Kunisk to un oto: Robin Kunis page 2 PM #40762529 #4076 40762529 2 40762 076252 40762 6 S 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 Untitled-3 1 2016-09-13 2:37 PM

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