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August 21, 2017

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Lawyers blast suspensions as unfair BY ALEX ROBINSON Law Times I f the Ontario Divisional Court sides with the Law Society of Upper Canada in an upcom- ing application on a disclosure matter, lawyers say it could make it harder to defend interlocutory sus- pensions. The law society has brought an application challenging a recent finding by its discipline tribunal panel in Law Society of Upper Canada v. Cengarle, ordering the regulator to disclose certain ma- terials to lawyer Licio Cengarle be- fore his interlocutory suspension hearing. In a motion for disclosure, Cen- garle argued it was necessary for the law society to disclose all pot- entially relevant materials and evi- dence in order to ensure fairness of the proceeding. The law society contended that it only needed to disclose what it was relying on in the motion, as well as anything that comes to the attention of counsel that would show the "test for an interlocutory suspension was not met." The panel ordered the law so- ciety to disclose all non-privileged documents reviewed before the interlocutory suspension motion that were relevant to the matter, but it fell short of offering full dis- closure. The law society subsequently disclosed the documents to Cen- garle, who is facing allegations that he knowingly or recklessly facili- tated a fraud his assistant allegedly ran using his trust account. He has since been suspended. But despite having already dis- closed the documents, the LSUC has asked the court to quash the disclosure order, saying a lawyer's right to disclosure and production before such a motion will "serious- BILL 101 UNDER FIRE Many shortcomings with proposed changes P7 FOCUS ON Pensions Law P8 PM #40762529 $5.00 • Vol. 28, No. 26 August 21, 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 DEBT COLLECTION Reforms may affect ability to recover costs P4 BY ALEX ROBINSON Law Times A Tax Court of Canada judge has issued a strong rejection of taking ques- tions "under advise- ment" in examinations for discov- ery. In Burlington Resources Fi- nance Co. v. the Queen, Justice Johanne D'Auray ordered the applicant to re-attend an exam- ination for discovery to answer certain questions they had refused to answer or only provided part answers for. In the original examination, Burlington Resources Finance Co. took 1,700 questions under ad- visement — a common practice in Tax Court, which allows parties to delay answering a question when they are unsure if they want to for- mally refuse it. There were 4,122 questions in total and Burlington Resources later refused to answer 1,200 of the questions it had taken under advisement. In the decision, D'Auray re- jected the practice, which lawyers say can be useful when used in moderation. "In my view, the practice of using the quasi-objection 'under advisement' needs to stop," she wrote in the decision. Lawyers say that most practi- tioners will only take questions under advisement when they feel they need to, but they say the case is an illustration of what can hap- pen when the tool is abused. Leigh Taylor, a tax lawyer with Leigh Somerville Taylor PC in To- ronto, says most practitioners will only use it when they want some genuine time to ref lect on the an- swer. "When it's used judiciously, it's appropriate. But in my experience, it's typically only where you're ask- ing for a specific admission that hasn't been considered before or when you're asking for a position on law," says Taylor, who was not involved in the case. She says going forward practi- tioners may be more tepid about taking questions under advise- ment. The underlying matter con- cerned an appeal by Burlington Resources Finance Co. in a trans- fer pricing case. The federal government brought a motion asking for an See Rules, page 2 Sunita Doobay says the Tax Court rules need to be revised to deal with a Tax Court of Canada justice's concerns about taking questions under advisement. Photo: Denise Militzer Taking questions under advisement must stop Darryl Singer says it is grossly unfair for the LSUC to impose an interlocutory suspension on a lawyer accused of misconduct before a penalty hearing is held. 2017 TECHNOLOGY LAW ON-DEMAND COURSES NOW AVAILABLE Benefit from a deep analysis of recent developments delivered by leading practitioners in the area. Ten courses are available across all areas of technology law. Powered by REGISTER TODAY | $149 + HST per course VISIT WWW.IT-CONFERENCE.CA Untitled-7 1 2017-08-14 4:26 PM Contact Nicole Breakey 1-888-781-9083 ext. 117 E-mail: nicoleb@docudavit.com www.docudavit.com SCAN | CODE | LOAD ocudavit-EARLUG_LT_Apr24_17.indd 1 2017-04-20 7:54 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 See Concern, page 2

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