Law Times

Page 4 June 3, 2013 Law Times • NEWS Bay Street firms jump on diversity bandwagon BY HEATHER GARDINER Law Times B ay Street law firms are jumping on the diversity bandwagon. Sixteen firms announced May 22 they've joined forces to form the Law Firm Diversity and Inclusion Network in an effort to promote these values within the legal profession. The move follows the establishment in 2011 of Legal Leaders for Diversity, an organization of in-house counsel that promotes diversity within the legal departments of corporations across Canada. Douglas New, a partner at Fasken Martineau DuMoulin LLP in Toronto and co-chairman of the firm's diversity committee, says the in-house counsel group has been very active in encouraging major law firms to join its efforts. "Once we started to meet, we realized that each of the firms is doing some of the same things, some of the firms are doing different things, and there's a lot to benefit diversity and inclusiveness [at] both the law firms and the woman of the firm's diversity committee. community in which we serve by "[And] to make it clear not only to the sharing some best practices between legal community but also to the commuthe firms," he says. nity at large that diversity and inclusion is The signatories of the network insomething that law firms don't just give clude: Faskens, Norton Rose Canada lip service to, it is really something that LLP, Bennett Jones LLP, McMillan we want to do and improve upon." LLP, Blake Cassels & Graydon LLP, The network's core values include sharGoodmans LLP, Borden Ladner Gering ideas for the promotion of diversity vais LLP, Gowling Lafleur Henderson and inclusion in connection with recruitLLP, Osler Hoskin & Harcourt LLP, ment, retention, and advancement within Davies Ward Phillips & Vineberg LLP, law firms; working with Legal Leaders for Heenan Blaikie LLP, Stikeman Elliott Diversity and other general counsel, law LLP, Dentons Canada LLP, McCarthy departments, business leaders, and profesTétrault LLP, Torys LLP, and Weirsional associations in their efforts to adFoulds LLP. vance diversity and inclusion; supporting "All of these law firms have their outreach programs in law schools and the own initiatives going on internally and broader community; promoting thought so this is a way that we can all share best practices and do things more uniform- In-house counsel have been very active in leadership and constructive dialogue ly," says Andrea Raso Amer, a partner at encouraging major law firms to join their on issues of diversity and inclusion; and diversity efforts, says Douglas New. evaluating efforts at inclusion. LT Dentons in Vancouver and co-chair- Decision applauded Continued from page 1 He adds: "There's a lot of interplay between the judges and the lawyers, and it's easier to do it in person. And the judges have the opportunities to sit together, to interact with each other, then discuss it amongst each other." Winkler noted that while it's within a court's discretion to hold a hearing beyond its territorial borders, courts should use it sparingly and only "where the court has subject matter and personal jurisdiction over the proceeding." In this case holding a single hearing instead of three will "save expense and valuable resources," Winkler wrote. It will also prevent inconsistent decisions, he suggested. Strosberg notes that trying to get judges to make concurrent orders can be problematic. "It's costly to do that and very time-consuming, expensive, and the risks are sometimes they don't do it. They sometimes don't agree." Litigating interprovincial class actions has been an ongoing problem in Canada. In 2011, the Canadian Bar Association approved part of a judicial protocol proposed by its national task force on class actions. It included standardizing settlement approval notices and co-ordinating the court approval process for multijurisdictional settlements. Despite those developments, multiple courts may still have had to hear the same motion based on similar submissions prior to Winkler's ruling. "It is not sensible to litigate the same issues over and over again," says Strosberg. Strosberg speculates that the future will bring further changes. "In time, I think there'll be a rule that judges will get together and decide where is the preferable place to do a class action one time. Maybe it'll be just like the U.S. rule. They have a multidistrict, and the judges will decide where it's going." Winkler's judgment emphasized the need for mobility across provincial lines, noting that the common law rules don't correspond to "modern realities of increasingly complex litigation involving parties and subject matters that transcend provincial borders." If a joint hearing does take place, it won't be the first time judges have crossed provincial borders in order to hear a class action. In Fontaine v. Canada (Attorney General), judges from Ontario, British Columbia, Quebec, Alberta, and Saskatchewan convened in Calgary to hear a motion on the Indian residential schools settlement. Judges from Manitoba and the territories joined in via telephone. In his decision, Winkler stressed that court procedures should work in the service of victims. "The procedural vehicle of the class action has permitted these victims to obtain redress for the harms they have suffered. The tragic events that gave rise to the actions transcended provincial borders and were national in scope." For Barry Glaspell, a partner at Borden Ladner Gervais LLP, the decision reinforces the notion about judicial economy that's key to class actions. "If a judge is in Mombasa, Kenya, on a beach holiday with her or his family and agrees to hear a motion, whether it's an Ontario motion or whether it's a pan-Canadian motion," it's absolutely fine, says Glaspell, a class actions litigator. "A Canadian judge is perfectly capable of being judicial when she or he is out of province, out of country or — remember Commander [Chris] Hadfield — in outer space. It doesn't matter where the judge is. So I would applaud the chief justice on this decision." LT Reprisals alleged Continued from page 1 Shallow brought the reprisal allegations following letters to his employer expressing concern about the fact that he still served as a Crown attorney. The respondents — four police officers, the Toronto Police Association, and the Toronto Police Services Board — have sought to dismiss Shallow's application. The tribunal granted the request in part by dismissing the allegations against the association. "In my view, the basis for this remedial claim is indistinguishable in any meaningful way from the claim advanced in the application, which is substantially that the TPA engaged in 'a deliberate course of conduct designed to deter, punish, and belittle the applicant for having filed a human rights complaint against members of the Toronto Police Association,'" wrote Muir. "Accordingly I find that the applicant has commenced a civil proceeding which incorporates within its remedial claim a remedy for an alleged infringement of the code — a reprisal for his having filed a human rights application. For these reasons, the application as it relates to the TPA is dismissed." Shallow says he's considering an appeal. "All I can really say at this point is that there is still a time frame within the Human Rights Tribunal rules as to reconsideration. My lawyers will be sorting through that. As much as I'd like to, it's not proper for me to comment any further about it at this point." The Toronto Police Association had also sought to have Shallow's application dismissed through an abuse of process consideration. Shallow didn't seek to add the Toronto Police Association as a respondent until six months after filing his statement of claim and a year after having all of the facts to support his reprisal allegation, Muir found. Shallow also failed to file his written argument by the deadline issued to him, the decision noted. Shallow says he became aware of many of the delays only after reading the decision. "The one thing that really struck me in the decision . . . is that it refers a lot to failures by the applicant to comply with certain timelines that were set. It is unfortunate that that's the language that was used because that makes it seem as though it's me when it's not," he says, noting it was his former counsel who "dropped the ball in that regard." "I take my deadline very seriously," he says. "I can tell you that it's not a reflection of me." Despite the failures, the adjudicator said dismissing the application altogether would be inappropriate. "While I appreciate that the applicant's failures will have caused the respondents here as well as in the lead case to incur some further, and arguably unnecessary, costs in dealing with this matter, the circumstances in my view are not such as would justify the extraordinary measure of the dismissal of the application," wrote Muir. In an e-mail to Law Times, Toronto Police Association president Mike McCormack said he couldn't comment on the case. "As there is still ongoing litigation, the Toronto Police Association declines to make any comment at this time," he said. The tribunal didn't dismiss the application when it came to the rest of the respondents as it found that there was a section in the human rights complaint that didn't arise in the civil proceedings. "Different considerations apply with respect to the application related to the TPS respondents," wrote Muir. "While the factual underpinnings are identical, the civil claim alleges that the alleged strip search and unlawful arrest and detention were contrary to sections 8, 7, and 9 of the Charter. Section 15 is not pled nor is there any allegation in the statement of claim that a factor in the applicant's alleged mistreatment was his race and colour." Still, Muir said it wouldn't be appropriate to deal with the matter before the civil proceedings are over. "In my view, the most fair, just, and expeditious manner of proceeding with this application is that it be deferred pending the conclusion of the civil proceeding. This civil claim was filed more or less concurrently with the application. It raises the identical factual issues and is considerably broader in scope. But for the lack of a few words in the statement of claim, it is identical to the application." LT Recruiting? 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