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June 25, 2018

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PM #40762529 $5.00 • Vol. 29, No. 22 June 25, 2018 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 Child rights advocates applaud OCA ruling Jesse Mark and Mary Birdsell are applauding a decision that litigation records from the Office of the Children's Lawyer for a child client are not subject to freedom of information legislation. Photo: Robin Kuniski MORE PRETRIALS Eases pressure on judicial resources P4 SEPARATION LEGISLATION Common-law marriage breakdowns happen P7 FOCUS ON Personal Injury Law P8 BY SHANNON KARI For Law Times T he Ontario Court of Ap- peal has ruled that all litigation records with the Office of the Children's Lawyer for a child client are not subject to freedom of information legislation even if it is not material protected by solicitor-client privi- lege. "Children's records do not con- tain information that could be described as 'government infor- mation,' nor do they contain any information that would advance the goals of government account- ability and transparency," wrote Justice Mary Lou Benotto in On- tario (Children's Lawyer) v. On- tario (Information and Privacy Commissioner). "The records in question here belong to the child," Benotto add- ed in the June 18 decision, with justices Lois Roberts and Paul Rouleau concurring. The Court of Appeal over- turned the Divisional Court in a dispute stemming from a records request filed under the Freedom of Information and Protection of Privacy Act by a father involved in a custody and access proceeding. In addition to finding that the records are not in the custody or under the control of the province for the purposes of that statute, the Court of Appeal disagreed with the Divisional Court's position on the standard of review of Informa- tion and Privacy Commissioner decisions in this area. "The unique role of the Chil- dren's Lawyer is fundamental to the proper functioning of the legal system. It is thus reviewable on the standard of correctness," wrote Benotto. "Like solicitor-client privilege, the confidential relationship be- tween the Children's Lawyer and children is 'fundamental to the proper functioning of our legal system' and the protection of that relationship has a central im- portance to the legal system as a whole," she added. The IPC has not yet decided whether to seek leave to appeal to the Supreme Court of Canada. "This decision is lengthy and complex and may have implica- tions for our office, including as it relates to the standard of review and the scope of the application of the act [FIPPA]," the provincial agency said in a statement. See Litigation, page 2 Banks added to alleged conspiracy class action BY ANITA BALAKRISHNAN For Law Times E ntities related to TD Bank and BMO will be added as parties to a class action suit against major banks, after Ontario's Court of Appeal over- turned a lower court's decision. The case, Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, is the latest twist in a series of legal actions across the world involving secretive chat messages, allegedly between bankers in the foreign exchange markets. The appeal decision explored what steps a representative plain- tiff could reasonably take to estab- lish that the Canadian banks could be co-conspirators in the secretive price-fixing scheme in the foreign exchange markets. "I think the takeaway point from this case is that the bar for showing diligence in terms of add- ing defendants is pretty low, and that's particularly the case in con- spiracy claims or when the defen- dants have taken steps to conceal [their involvement]," says Simon Bieber, partner at Adair Goldblatt Bieber LLP. In December, Justice Paul Per- ell of the Superior Court of Justice acknowledged that there was no evidence of public documents ty- ing TD and BMO to the alleged conspiracy. Perell reasoned that the plaintiff should have taken steps to conduct a meaningful investigation to identify TD and BMO as co-conspirators. The ap- peals judge, Associate Chief Justice Alexandra Hoy, found that the motion judge had "too high an evi- dentiary threshold." "The decision of the Court of Appeal restores the proper bal- ance," says Kirk Baert, partner at Koskie Minsky LLP, which repre- sented the plaintiffs. Baert says the standard set by Perell was "especially hard to meet in price-fixing cases, which neces- sarily involve secret conduct." The case, which involves more than a dozen financial institutions, See Allegations, page 2 www.twitter.com/lawtimes Follow CALL FOR NOMINATIONS Nominations close July 13 th , 2018. lexpert.ca/rising-stars FOUNDING PARTNER Untitled-1 1 2018-06-20 11:14 AM & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM Simon Bieber says a ruling that adds two banks as parties to a class action suit shows 'that the bar for showing diligence in terms of adding defendants is pretty low.'

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