Law Times

March 25, 2019

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LAW TIMES 2 COVERING ONTARIO'S LEGAL SCENE | MARCH 25, 2019 lawyer representatives to the law society's board of benchers in the election, including 20 from outside Toronto for what the LSO says will "ensure adequate regional representation." Since 1999, the LSO has had a "regional" bencher scheme where the candidate who re- ceives the highest number of votes in each of the eight elec- toral regions joins Convocation, according to the LSO's election website and 2015 election re- sults. Other than Toronto, the re- gions are divided by counties and municipalities in Ontario that include: northwest (Ke- nora, Rainy River and Thunder Bay), northeast (Algoma, Coch- rane, Manitoulin, Nipissing, Parry Sound, Sudbury and Ti- miskaming); southwest (Elgin, Essex, Huron, Kent, Lambton, Middlesex, Oxford and Perth); central east (Muskoka, Halibur- ton, Northumberland, Peterbor- ough, Simcoe, Victoria, Durham and York); central west (Bruce, Dufferin, Grey and Welling- ton, Halton and Peel); and cen- tral south (Brant, Haldimand- Norfolk, Hamilton-Wentworth, Niagara and Waterloo). Ottawa and the remaining areas are in the east electoral region, the law society's website said. Donnelly, who says she hopes to stress the importance of local law associations if re-elected to Convocation, says she has not noticed any sort of divide within Convocation between lawyers inside and outside Toronto. But Steve Rastin, managing partner of Rastin & Associates, who has offices in Midland and Barrie, Ont., says there is a per- ception that Convocation has a lot of lawyers tied to large, down- town Toronto law firms and that Convocation focuses on issues that may be more relevant to a certain demographic of lawyers. "I was blessed to be able to develop a good perspective as president of the Trial Lawyers Association. I travelled all over the province and talked to law- yers, to paralegals and judges," says Rastin. "Our region is very geographically large. It is urban and rural." For one thing, he says, re- gional libraries — regulated by the law society through Li- braryCo — are essential for practitioners who can't afford online databases or travelling, says Rastin. Rastin also says he opposes propositions to further shrink the number of benchers in Con- vocation. "I have serious concerns.," he says. "[Wi]th great respect, what matters to a lawyer practising in a Bay Street firm in Toronto could very well be different from what matters to a small-town lawyer practising family law in Collingwood." Jerry Udell, senior counsel at Miller Canfield LLP in Windsor, who is running for re-election as a bencher, says there was a learning curve for him when be- coming a bencher but that there is still room for improvement within Convocation. "The farther away you are from the GTA, the less effective the communication is. I think the law society needs to be bet- ter at communicating with its members," says Udell. LT NEWS Continued from page 1 Better communication needed ONTARIO LAWYER'S PHONE BOOK 2019 The Ontario Lawyer's Phone Book 2019 has more than 1,400 pages of indispensable legal references that can connect you with anyone you need. Updated throughout the year, it contains names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. More detail and a wider scope of legal contact information for Ontario: • Over 26,600 lawyers listed • Over 8,700 law firms and corporate offices listed • Telephone numbers, e-mail addresses, office locations and postal codes Includes lists of: • Federal and provincial judges • Federal courts • Ontario courts and services • Small claims courts • The Institute of Law Clerks of Ontario Order your copy today. Visit or call 1-800-387-5164 for a 30-day, no risk evaluation Perfectbound Published December each year On subscription $87.50 One time purchase $91 Order No. L7798-7858 ISBN 978-0-7798-8405-6 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) CONNECT INSTANTLY TO ONTARIO'S LEGAL COMMUNITY Untitled-15 1 2019-02-26 4:08 PM Limits on what's admissible Continued from page 1 tal and not central to the criminal case." Plate had been a division general manager and subsequently vice president of global strategic customers at Atlas. After termi- nating him in 2007, Atlas sued Plate for $20 million, claiming he'd been part of a scheme to defraud the company. A criminal charge followed, and a jury convicted Plate of de- frauding the company of more than $5,000 by deliberately inf lat- ing invoices for employee benefits to more than $20 million. On sentencing, the judge found that Plate's participation in the fraud amounted to a "gross breach of his fiduciary duty" to the company. He found that Plate was "highly trusted" and had "gross- ly betrayed" that trust through his "passive acquiescence" in the criminal scheme. Plate was sentenced to five years in jail. Subsequently, Atlas, relying solely on the criminal verdict and the findings on sentencing, moved for summary judgment in the civil proceeding before Justice Sean Dunphy of the Ontar- io Superior Court. Dunphy gave the sentencing judge's findings, including the finding that Plate had breached a fiduciary duty, "very considerable weight." Dunphy concluded that Plate was in fact a fiduciary for the purposes of the civil suit and granted summary judgment for $20 million. "The Decision on Senten- cing made specific findings that Mr. Plate was a fiduciary," Dun- phy wrote. "The finding is one amply supported by Mr. Plate's title during the relevant time frame (General Manager of CMT and then vice president) and by such description as the Decision on Sentencing contains regarding his duties and the vulnerabil- ity of Atlas Copco to him. Mr. Plate has provided me with no evidence to negative that finding." Plate appealed. "In essence, the appellant's core submission — while not ex- pressly stated in these terms — is that the motion judge could not grant summary judgment for breach of fiduciary duty on the strength of the findings made by the sentencing judge," wrote Associate Chief Justice Alexandra Hoy for a unanimous bench composed also of justices Kathryn Feldman and Grant Huscroft. In the result, the Court of Appeal overruled Dunphy and sent the matter back for trial. As Hoy, writing for the court, saw it, Dun- phy had properly admitted the sentencing findings. "At the sentencing proceedings, the extent of the appel- lant's breach of trust was a relevant consideration, pursuant to s. 718.2(a)(iii) of the Criminal Code," Hoy noted. "It is in rela- tion to this factor that the sentencing judge found the appellant to have breached a fiduciary duty to the respondent. Thus, the fact that the issues in the criminal proceedings were not iden- tical to those in the civil proceeding did not operate as a bar to admissibility of the sentencing judge's findings relative to the re- spondent's breach of fiduciary duty." Where Dunphy went wrong, however, was in giving too much weight to the sentencing judge's conclusion that Plate was a fiduciary and in "failing to consider factors that were relevant to the weight to be accorded to the sentencing judge's findings relative to fiduciary duty." Those factors include the similarity of the issues to be decid- ed, the identity of the parties, the nature of the earlier proceed- ings, the opportunity given to Plate to contest the previous find- ing and whether the prior proceedings were criminal or civil. Here, the Crown had not even argued that Plate was a fiduciary but focused on the extent of his breach of trust. That was critical because although a fiduciary relationship involves an element of trust, it has a distinct meaning at law from the term "position of trust" found in the Criminal Code. "While the characterization of an individual as a fiduciary is a question of mixed fact and law, the sentencing judge did not have the benefit of legal submissions from the parties on that issue, and did not advert to any legal authority in his Decision on Sentencing on the test for imposing a fiduciary obligation, in finding the appel- lant to be fiduciary," Hoy wrote. And because the finding that Plate was a fiduciary was not ex- press or implied in the jury's verdict but was made in the exercise of the trial judge's sentencing powers, Plate's "ability to appeal that finding was constrained significantly." Dunphy erred by not taking these factors — "factors that diminished the weight to be accorded to the finding that the appellant was a fiduciary" — into account and, by so doing, erred in principle. "[I] am not satisfied that the record before the motion judge positioned him to make the necessary factual and legal findings to either grant judgment to the respondent for breach of fiduciary duty in the amount of $20 million or to dismiss its claim for breach of fiduciary duty," Hoy concluded. Ultimately, then, the decision as to whether Plate was a fiduciary was "for the ultimate trier of fact." Jim Patterson, the litigation partner in Bennett Jones LLP's Toronto office, who represented Atlas, would not comment be- cause the matter was still before the court. LT

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