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Aug 6, 2012

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AUSTRALIAN REFORMS P5 Changes do little for access to justice JUDICIAL DIVERSITY Conventions have changed at SCC $4.00 • Vol. 25, No. 24 ntitled-2 1 COVERING ONTARIO'S LEGAL SCENE • WWW.LAWTIMESNEWS.COM Can lawyers reveal clients' HIV status? Case shines light on ethical dilemmas when safety at risk 7/7/11 9:10:05 AM L AW TIMES P6 BY SIOBHAN McCLELLAND For Law Times A recent criminal case in which a defence counsel disclosed her client' obligation to divulge privileged informa- tion when public safety is at stake. Lawyers can't divulge information pro- court raises important ethical issues as to lawyers' ability and s HIV status to the vided by a client in the course of the solic- itor-client relationship without the client' consent. But in the recent case of R. v. Butt, criminal defence lawyer Heather Pringle did just that and drew praise from the court for doing so. Pringle' s guilty to sexual interference and received a sentence of 14 days in jail. While waiting for the Crown' tence, Pringle learned her client was HIV positive. Aſt er seeking legal advice, Prin- gle disclosed her client' s appeal of the defendant's sen- and the court, a move that led to HIV test- ing of the 12-year-old victim and the dis- covery that he wasn't HIV positive. "Ms. Pringle is to be commended for her s status to the Crown stated in a July 25 Superior Court ruling. He went on to note that the public safety or future harm exceptions to solicitor-client s client had pleaded appreciation of her ethical obligations in this diffi cult matter, " Justice Michael Code Lawyer Doug Elliott says he would have informed public health officials if he faced the dilemma over whether to disclose a client's HIV status. Photo: Laura Pedersen privilege and the duties arising from them aren't easy areas of the law to apply. Although use of the future harm excep- tion is rare, the case raises issues around lawyers' duties to report a client' if they learn the accused is HIV positive and could pose harm to an identifi ed person. Nei- ther case law nor professional guidance off er much assistance to lawyers trying to make their way through this ethical minefi eld. "In this case, the lawyer acted completely s HIV status appropriately in approaching the judge and getting guidance, [and] disclosing limited amounts of information, having satisfi ed herself and the court that the threshold of the [public harm] test had been met," says Simon Chester, a partner at Heenan Blaikie LLP. "It' sic example of a lawyer recognizing that they have a professional responsibility to consider whether to breach what is an absolutely fun- damental tenet." Another lawyer suggests there were alter- s an important case but it's a fairly clas- natives. "I think I would have handled it a little diff erently if I had been in [Pringle' Elliott, who played a role in the hepatitis C class action, says the benefi ts of involving Judge calls for changes to civil costs rules BY SIOBHAN McCLELLAND For Law Times D The decision may result in 'Toronto judges forc- ing counsel to comply with the rules with a bill of costs at the hearing,' says David Sterns. ing for changes to the Rules of Civil Procedure. In his reconsideration decision ebate over whether un- successful parties should have to fi le bills of costs has a Toronto judge call- in Re Estate of Ruth Smith; Smith v. Rotstein, Superior Court Justice David Brown suggested it' for a change to the rule on costs. Although the Ontario Court of Ap- peal has held there' s time that a losing party who isn't seeking costs has to fi le a bill of costs, Brown commented that the civil rules com- mittee should consider amending Rule 57.01 in order to allow judges the ability to order an unsuccessful s no requirement party on a motion or trial to do so. Rule 57.01(6) requires all parties who intend to seek costs at a pro- ceeding to exchange cost outlines at the hearing. But problems arise in more complex motions or trials where judges reserve their decisions and the parties don't address costs on the day of the proceeding. In these circumstances, the rules don't require an unsuccessful party to deliver a cost outline, making it dif- fi cult for judges to determine what costs are reasonable. "Th ere' to the court in both sides making their costs submissions at the con- clusion of argument before the de- cision is rendered, s certainly an advantage venson of Stevensons LLP, adding that this enforces reasonableness A DAILY BLOGOF CANADIAN LEGAL NEWS [WWW.CANADIANLAWYERMAG.COM/ LegalFeeds-BB-LT-Apr23-12.indd 1 DS ] " says Colin Ste- on both parties before the court makes a decision. But he notes this isn't practical in all cases. David Sterns of Sotos LLP says the issue is the question of when parties should have to submit their bills. "To me, the better time to force a party to show their cards is before the decision has been rendered. that point, he says that as neither party knows what the outcome will be, they're more likely to be realistic. But once the court renders a de- cision, Sterns says there's too much " At ally important that the people doing them have complete neutrality. s re- See Cost, page 4 " says Doug Elliott of Roy Elliott O'Connor LLP, adding he would have put the matter in the hands of public health offi cials who could then have followed up with the victim' s] shoes," s family. See Little, page 4 FOCUS ON Corporate/Commercial Law P9 August 6, 2012 selectivity in preparing a bill to ex- pect the losing party to put down a realistic fi gure. "In order for a bill of costs to be a good benchmark, it' CANADIAN LAWYER & LAW TIMES POWERED BY 12-04-16 11:56 AM PM #40762529

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