Law Times

November 23, 2015

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A look at Cassels Brock's class action appeal BY NEIL ETIENNE Law Times itigation related to the class action involving Cassels Brock & Blackwell LLP continues with the firm appealing the $45 million in dam- ages assessed against it in July and its third-party claim against 150 lawyers from across the country heading to a jurisdictional hear- ing in early December. In its notice of appeal, Cas- sels Brock is seeking to have the judgment against it set aside, the actions against it dismissed with costs or, failing that, a new trial. "The reasons of the trial judge are deficient, internally inconsis- tent, fail to properly characterize the evidence at trial and do not demonstrate that the trial judge considered material aspects of the evidence before him," the firm stated in its notice of appeal. In his decision this summer in Trillium Motor World Ltd. v. Gen- eral Motors of Canada Ltd., Justice Thomas McEwen found Cassels Brock had breached contractual and fiduciary duties it owed to some or all of the class members. As well, he found it had breached a duty of care. In 2009, General Motors elimi- nated about 200 dealers during the government's bailout of the auto sector. The class action against GM was seeking $750 million in damages on behalf of those deal- ers. Also named in the suit was Cassels Brock, which the dealers claimed to have retained during GM's restructuring through its retainer with the Canadian Auto- motive Dealers Association. The claim alleged Cassels Brock had failed to disclose it was also act- ing for the Canadian government in the bailout and had breached its duties to them. In its appeal of McEwen's rul- ing, Cassels Brock argues that contrary to the claims of Trillium Motor World, it never acted for the dealers as GM never made a filing under the Companies' Creditors Arrangement Act. It argues there was never an official retainer with the dealers and that the trial judge had erred in inferring that it acted differently in its representation of dealer interests as a result of its retainer with their association. ARE YOU RECEIVING CANADIAN LEGAL NEWSWIRE? Keep abreast of essential legal news, opinions and analysis with our electronic newswire. VISIT OUR WEBSITE WWW.LAWTIMESNEWS.COM SIGN UP FOR FREE From the publisher of and CLNW_LT_Nov2_15.indd 1 2015-10-28 8:33 AM Lawyers applaud Gravesande ruling Case prompts concern about in-person visits to clients in custody BY NEIL ETIENNE Law Times n a case that raises significant issues for defence coun- sel around their visits to clients in custody, many To- ronto lawyers are applauding an Ontario Court of Ap- peal ruling that set aside a drug-smuggling conviction against a colleague. On Nov. 13, the appeal court ordered a new trial for vet- eran Toronto defence lawyer Deryk Gravesande after he challenged his conviction for smuggling 58 grams of mari- juana to a client he was visiting at the now-defunct Don Jail in 2012. Henein Hutchison LLP's Scott Hutchison, who han- dled the appeal of Gravesande's conviction, says there were several reasons for taking on the case. "One, he's well loved in the legal community and the prosecution had really tested his resources, and, secondly, the circumstances of the case engaged issues that the whole profession is con- cerned about and that's the relationship between counsel visiting their clients in institutions and the way they're ex- posed when that happens," he says. "It highlights the importance of the procedures that institutions have in place and the need for them to be fol- lowed scrupulously and the danger of jumping to conclu- sions when those procedures haven't been followed, which is what clearly happened here." To support Gravesande through the process, the Crim- inal Lawyers' Association also created a fund that his peers donated to. Association president Anthony Moustacalis, who sat through most of the trial and appeal, says it wasn't LITIGATION REVIEW Trudeau sets out Wilson-Raybould's mandate P4 JUST-CAUSE ASSERTIONS Employers warned to be careful in claims P7 FOCUS ON Environmental Law P8 The ruling is a stern warning to correctional institutions to follow proper procedure, says Jonathan Rosenthal. Photo: Robin Kuniski See Class, page 5 See Counsel, page 5 'Our position is that the decision is very well reasoned and it's based on facts that are extraordinary,' says David Sterns PM #40762529 TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM $5.00 • Vol. 26, No. 37 November 23, 2015 Follow LAW TIMES on L AW TIMES I L

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