Law Times

May 1, 2017

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OCA allows lawsuit against union to proceed BY ALEX ROBINSON Law Times T he Ontario Court of Ap- peal has allowed a plain- tiff 's lawsuit against a union to go forward de- spite the fact she applied to correct a procedural error after the limi- tation period — a decision that a dissenting judge said will inject uncertainty into the law. In Lawrence v. International Brotherhood of Electrical Work- ers, the majority decision allowed a wrongful dismissal action by a former employee of the union to proceed, saying the procedural error was not enough to make the lawsuit a "nullity." The Court of Appeal found that the union — the International Brotherhood of Electrical Workers Local 773 — had brought its motion to dismiss the case based on the procedural issue only after a two- year limitation period had passed. In the meantime, the union had retained counsel, submitted a statement of defence and partici- pated in discovery, mediation and a pre-trial conference. "I find it difficult to reconcile Local 773's normal litigation activ- ity on this matter over the course of more than two years with its argument that the action against it was so seriously f lawed as to constitute nullity," Justice Robert Sharpe wrote in the decision. An Ontario Superior Court justice dismissed the union's mo- tion to dismiss the case, saying the union had failed to bring it in a timely manner and the Court of Appeal upheld that decision. Lawyers say the decision is a message from the Court of Appeal that the courts are not going to al- low technical tactics to thwart the underlying justice of a case. "It used to be especially long ago that lawyers did a lot of that," says Thomas Gorsky of Sherrard Kuzz LLP, who was not involved in the case. "They often manoeuvred around and figured out ways to SEXUAL ASSAULT Victims reluctant to bring allegations P7 FOCUS ON Aboriginal Law P8 See Wrongful, page 2 PM #40762529 $5.00 • Vol. 28, No.15 May 1, 2017 L AW TIMES 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 PLAIN PACKAGING Fundamental change in brand owners' rights? P5 BY ALEX ROBINSON Law Times L awyers say that while new changes to the rules around referral fees will likely bring increased transparency and clarity to the referral process, it remains to be seen how the new rules will be en- forced. The Law Society of Upper Canada approved a cap on referral fees at its April meeting that limits the amount lawyers can get for re- ferring cases to $25,000. The sliding cap will see referral fees be limited to 15 per cent of the first $50,000 charged in legal fees and five per cent of any fees on top of that up to the $25,000 cap. The cap was one of a number of recommendations Convocation approved in an attempt to make referral fees more transparent for clients. The recommendations fol- lowed an interim law society re- port that found clients of some personal injury firms were some- times unaware that they were being referred to another firm or that a referral fee was paid. The working group also found that referral fees had been creep- ing up to sometimes exceed more than 25 per cent. "The working group recog- nized that there isn't a clearly right answer and that reasonable people can have different views as to what the right cap should be and the result was an attempt to not have a cap so harsh as to in effect be a prohibition, and to generally try to achieve a rever- sal of the increases experienced and to get referral fees back to where they were historically," says Bencher Malcolm Mercer, who is chairman of the Advertising and Fee Arrangements Issues Work- ing Group. Kate Mazzucco, a personal injury lawyer and partner with McLeish Orlando LLP, says the changes are consistent with the goals of increased transparency and consistency within the pro- fession, but the law society's ap- proach to enforcing these rules will be key to how successful they are. "I think the key will be prop- er enforcement, which will be something we have to wait and see how the law society does and how things play out, but I think See Limit, page 2 Kate Mazzucco says new rules around referral fees for lawyers are consistent with the goals of increased transparency and consistency within the profession. Photo: Robin Kuniski LSUC approves sliding cap for referral fees Thomas Gorsky says a recent Court of Appeal decision is a message from the court that it will not allow technical tactics to thwart the underlying justice of a case. & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM Integrated Legal Marketing Solutions LawyerMarketingCanada.com/solutions Put Your Digital Marketing Tactics into High Gear Untitled-2 1 2017-04-25 2:37 PM

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