Law Times

Page 6 January 28, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Dispute over inches not worth court's time S even years after it lost its bid to enforce building standards related to handrails and stairwells against a west Toronto apartment building, the City of Toronto was back in court trying to do so once again on the basis of an updated bylaw. The first time around in 2005, the city lost given that the rules in place exempted older buildings (the property in question dates back to 1958). So when it removed that exemption in 2008, an inspector issued an identical compliance order against the building. The company, Rexlington Heights Ltd., then appealed to a city committee, which rescinded the inspector's order. The case landed back in court this month as the city appealed the committee's decision. It's worth noting that the standards at issue involve relatively minor discrepancies. Ontario Superior Court Justice Edward Morgan, in summarizing the findings from the 2005 ruling in his Jan. 10 decision in City of Toronto v. Rexlington Heights Ltd., noted the issue "amounts to a matter of inches." When it came to the handrails, for example, they're about four centimetres shorter than the standards require. In fact, the 2005 ruling found the property "to be in substantial compliance with then-current property standards," wrote Morgan. So when the city relaunched litigation based on the 2008 removal of the exemption, Morgan faced a number of legal arguments. Was the case, for example, res judicata? Alternatively, did it amount to an abuse of process given that the standards in question involved essentially the same set of facts? As Morgan noted, "The respondent is still the same inch or two from strict compliance that it was in 2005." The city, of course, had a viable argument that issue estoppel didn't apply since it was now seeking enforcement of new rules. But in his wisdom, Morgan found against the city as allowing the appeal to proceed "would amount to an abuse of the court's process." "Judicial resources were used to positive effect on this municipal code compliance question in 2005 Rexlington; to expend them again can only reduce the efficiency and fairness of that result," he wrote. "It does not always occur, but where the saving rather than the expending of judicial resources re- sults in more rather than less fairness, it is in everyone's interest to avoid the unnecessary proceeding." In this case, Morgan has issued a fair and logical decision that should give pause to those tempted to follow the city's line of thinking. There's simply no need to devote more of the court's time to such a minor issue. When the case involves issues of little practical significance, judicial economy demands that we not spend even more time on them as there are more important matters to deal with. — Glenn Kauth Legal aid changes put viability of private criminal practice at risk T he viability of private criminal practice in Ontario is at risk from changes to legal aid coverage even as Legal Aid Ontario denies on its web site that it's bringing in a public-defender system. The news follows a rumour in Toronto that duty counsel would now handle pleas where the accused is facing a period of incarceration of up to six months. On Jan. 18, LAO addressed these and other swirling rumours on its web site. It says duty counsel will only take on matters where they feel they have the ability, experience, and time to do so. Even where the Crown has screened a file for jail, LAO doesn't accept that there's a probability of incarceration, which is part of its test for issuing a certificate for private counsel. In the article on its web site on myths and realities at LAO, it states: "LAO does not necessarily accept Crowns' screening forms as absolute proof that if convicted, a person would go to jail." Defence lawyers, however, are finding that the legal aid certificate system is available for fewer cases and that duty counsel are taking on more matters. Law Times agreement).  A boarder must Twenty years ago, clients who applied for certificates A Criminal have a gross income below $7,100 for a free certificate. generally received them, at Mind More generous finanleast in Ottawa. After the earcial eligibility criteria apply ly 1990s, the test for eligibility if clients resolve their cases was applied more stringently with duty counsel. For exacross Ontario and clients ample, for a single person, had to be facing a probability the financial cutoff is a gross of incarceration and meet a income below $18,000. financial-means test. The LAO web site now Now the situation is more complex.  Clients who Rosalind Conway states that "certificates are only for the most serious casare actually in jail may not es." To qualify for a certificate, qualify for a certificate and it's not uncommon to see counsel bring- the test is threefold: first, the client must ing payment applications for  Rowbo- meet a stringent financial-means test; tham  orders or seeking appointments second, the applicant must probably be as  amicus curiae.  Unrepresented indi- facing incarceration; and, third, the case gent accused often have court-appointed must be a serious criminal matter.  But counsel for the limited purpose of cross- how serious does it have to be? LAO considers aggravating and mitiexamining vulnerable witnesses under s. gating factors when determining whether 486.3 of the Criminal Code. As I wrote in a column in early 2012, to issue a certificate as well as the resourcthe financial-means test for a free crimi- es available in the region. Many common nal certificate dates back to 1996 without criminal charges no longer automatically adjustment for inflation. A single person qualify for certificates, including matters must have a gross income below $10,800 such as criminal harassment, possession per year (although a client with an income of cocaine, and breaching court orders. below $12,500 is eligible for a contribution There's an interactive feature on LAO's Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . 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Circulation inquiries, postal returns www.lawtimesnews.com web site that lets lawyers and clients type in charges to see if they may be eligible for a certificate and there are columns of aggravating and mitigating factors. The application process is therefore more complex and certificates are increasingly difficult to obtain. As a result, it's likely more unrepresented accused will go to trial. This is the biggest threat to the private defence bar since the deep legal aid cuts of some 20 years ago. Those cuts resulted in layoffs and business closures and the combined effect of requiring that matters be serious and outdated financial eligibility criteria will likely make many legal aid-based practices untenable. It's difficult, then, to envisage how our system will function efficiently with the vagaries of certificate eligibility and it appears the objectives of Justice on Target will be difficult to achieve. The impact on clients, criminal practitioners, and the courts of these new legal aid changes in Ontario will be dramatic. We're already feeling them. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com advertising Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt...... sandra.shutt@thomsonreuters.com

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