Law Times

April 1, 2019

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LAW TIMES 2 COVERING ONTARIO'S LEGAL SCENE | APRIL 1, 2019 people and have them be famil- iar to us. That's as much a key as being an incumbent," she says. Mirilyn Sharp is a 1985 call and litigation partner at Blaney McMurtry LLP in Toronto. Name recognition, she says, is first and foremost among in- cumbents' advantages. "Many lawyers simply vote for the names they recognize with- out even reading the platforms," she says. "That's fair enough if they know the candidate but quite concerning if the vote is simply for a recognizable name." Another factor is incum- bents' experience and record as benchers. "My sense is that, in many cases, re-election happens be- cause voters are content with how things are going, even though they may not be aware of just what the last slate has been do- ing," she says. Atrisha Lewis, a first-time candidate and litigation associ- ate in McCarthy Tétrault LLP's Toronto office, is a 2013 call who is "100-per-cent" certain that in- cumbents hold the aces. "The name recognition advantage they have is com- pounded by the fact that being a bencher means they get to work with a lot of different people and expand their networks," she says. And like Sharp, Lewis says that having a large established network in place may be all that's required to be re-elected if there isn't an upsurge in the numbers of lawyers who vote in the election. "With the turnout that we get, which was about 35 per cent in 2015, you don't actually require a significant number of votes, because 3,000 or so will do it," she says. "What you really need is a voting bloc, and it's the incum- bents who have had the oppor- tunity to figure out where their magic spot is." But Sid Troister, a real estate partner at Torkin Manes LLP in Toronto, who was first elected as a bencher in 2015, says this elec- tion may be different. "I don't know of a single in- cumbent who is resting on their incumbency to get re-elected," he says. "This is the first election where social media could be a factor, and that may change the landscape, which was previously all about name recognition." Other things have changed as well. "There are none of the big firm alliances that people used to speak of and not even much in the way of sharing endorse- ments," says Troister. LT — with files from Anita Balakrishnan NEWS Continued from page 1 This election different? CLA master powers limited on summary judgment tive, especially in Toronto, where construction lien mas- ters have routinely been using the enhanced powers in sum- mary judgment motions to adjudicate construction liens," says Wise, who practises at Ken Wise & Associates. "It's also a very interesting analysis of legislation, as opposed to the judicial system — judges — and how they should be inter- preting legislation." The conf lict centred on the construction lien master's de- cision to dismiss a summary judgment motion. The master referred in her decision to s. 58 of the Construction Lien Act, which says a master "has all the jurisdiction, powers and authority of the court to try and completely dispose of the action," according to Belobaba. Separately, Rule 20.04 of the Rules of Civil Procedure pro- vides that "the court" should grant summary judgment if "the court is satisfied that there are no genuine issues requir- ing a trial," Belobaba wrote. Particularly, Rule 20.04 says that when determining whether there is a genuine is- sue requiring a trial, "if the determination is being made by a judge," a judge has en- hanced powers of "weighing the evidence, evaluating the credibility of a deponent or drawing any reasonable infer- ences from the evidence," said Belobaba in the decision. Belobaba pointed out in his decision that the case law was split on the issue, but he concluded that while masters may hear summary judgment motions, they may not use the enhanced powers. Although Belobaba grant- ed the defendant's motion, he wrote that the plaintiff had correctly argued that the CLA was designed to provide a cheaper and more efficient way to solve construction lien conf licts. But, he wrote, if masters need enhanced powers, it will need to be done through a leg- islative amendment. David Taub, a partner at Robins Appleby LLP in To- ronto, who was not involved in the case, says there is a need for masters to have the enhanced powers in the Rules of Civil Procedure. "What [the decision] does is draw attention to a gap that, probably, not many people turn their minds to in respect to the Construction Act re- gime. I do agree that there is a need for masters to have this missing power — the enhanced powers to make findings re- specting weighing evidence, credibility and drawing infer- ences so that they can make findings and resolve claims by summary judgment. That's consistent with the purpose of the act, but they don't have the power to do it," says Taub. Catherine DiMarco, a part- ner at Heal & Co. LLP based in Toronto, who was not involved in the case, says that the fact the procedure was styled as a "summary judgment" motion may have lost some of the nu- ance of the situation. "I think that label in this case matters more than it should. And I think part of the issue — part of why these things get clouded — is that people kind of gravitate back to the pecking order or some people's views that masters are subordinate to judges," says DiMarco. Brennan Maynard, an as- sociate at Glaholt LLP, who worked on the motion, was no longer at the firm and could not be reached by deadline. LT Continued from page 1 The Canadian Lawyer InHouse Innovatio Awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations within the Canadian legal market. To book your seats or to inquire about sponsorship, contact us at 416-649-8841 or Date: Sept. 26, 2019 Location: Arcadian Court, Toronto 5:30 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Emcee: Gail J. Cohen, Stategic Consultant, Innovatio and former Editor-in-Chief, Canadian Lawyer InHouse Dress: Business Attire THE E B O L G AND MAIL SIGNATURE SPONSOR BRONZE SPONSOR BRONZE SPONSOR MEDIA PARTNER GOLD SPONSOR PLATINUM SPONSOR COCKTAIL SPONSOR SILVER SPONSOR Untitled-8 1 2019-03-27 11:56 AM

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