Law Times

Law Times • September 2, 2013 Page 3 NEWS Feds should follow Ontario in seeking bilingual bench: report Shortage of judges who speak French, English hampering access to justice BY CHARLOTTE SANTRY Law Times A shortage of bilingual superior court judges is hampering access to justice for English and French speakers, according to findings in a report by the commissioner of official languages. Commissioner Graham Fraser presented a report on bilingual capacity in the courts to Canadian Bar Association members at the organization's annual conference last month. The report recommends applying some of the recruitment practices for selecting Ontario Court of Justice judges to their federally appointed counterparts, including those working in the superior courts. Speaking at the conference, Fraser said: "While access to justice is a concern for all Canadians before the courts, equal access to justice in either of Canada's official languages is an additional challenge for the approximately two million Canadians who are members of official language minority communities." Litigants who want to appear before judges in either English or French must "all too often" plead their case in the other language or "deal with additional costs and delays," said Fraser. One reason is the "bilingual capacity of the judiciary for superior courts," he added. The report's findings stemmed in part from a survey of 373 lawyers, the biggest proportion of whom came from Ontario. More than three-quarters said that in regions or cities where it was more Litigants who want to appear in a particular language often face 'additional costs and delays,' says Graham Fraser. difficult for cases to proceed in minority languages, bilingual judges weren't always available. Three-fifths of respondents said bilingual judges' language skills were insufficient. The study also looked in detail at the appointment processes and language assessments used to recruit federally appointed judges. The Office of the Commissioner for Federal Judicial Affairs Canada takes a first look at applications for these roles to check whether candidates have met basic criteria. Candidates must have at least 10 years' standing at the bar. The judicial affairs office then sends lists of candidates to provincial advisory committees. The committees whittle down the list before the justice minister confirms an appointment. The report states: "While bilingualism is on the list of competencies that are sought, it is not evaluated systematically or based on objective criteria. The advisory committees very rarely interview candidates." In contrast, bilingual judges must fill certain posts at the Ontario Court of Justice. Ontario, along with New Brunswick, Quebec, and Manitoba, also interviews candidates to evaluate, among other things, their language skills. Candidates applying to be justices of the peace are assessed on their oral and written French skills in line with provincial language standards. The commissioner highlighted these practices as ones that could apply to federally appointed judges. The report calls for Justice Minister Peter MacKay, together with the attorneys general and chief justices of the courts in each province, to set standards for bilingual judges' language skills and carry out systematic tests. It also suggests identifying the number of bilingual judges required in each province. It sets a deadline of Sep. 1, 2014, for the minister to "ensure appropriate bilingual capacity in the judiciary of Canada's superior courts at all times." Speaking to Law Times at the CBA conference in Saskatoon, Fraser said: "Whenever we've raised the issue in the past with previous ministers of justice and the department, they've always said, 'We consult with the chief justice and each province and they say there's no problem.'" While MacKay has said legal compe- tency should be the most important criteria for selecting judges, "I would argue that language skills have to be considered to be an important legal competence," said Fraser. MacKay addressed the findings at a media briefing last Monday. "It's not a question solely of resources. It's trying to find efficiencies, trying to identify the right people in the system, and trying to get to a place that will have more bilingual judges available to work within the system. That's the overall goal, clearly." Asked about the Sep. 1, 2014, deadline set by the commissioner, he said: "I'm reluctant to say I'm going to meet that deadline until we've assessed what all the recommendations are and what the enormity of the challenge might be. That's a nice goal to work toward." He noted he needed to digest the report fully before providing a "more fulsome response." Access to justice was a hot issue for the duration of the CBA conference. The CBA produced its own report on the issue that criticized the "abysmal" state of access to justice in Canada. It set out a road map for turning the situation around by 2030 that it says would involve more federal funding for legal aid and better data collection, among other measures. Closing the conference in Saskatoon, access to justice committee chairwoman Melina Buckley highlighted the fact that Canada has ranked 54th out of 66 countries on access to justice. All lawyers have a "responsibility to in some way commit to helping with access to justice," she said. LT No leniency for lawyers as appeal court restores counsel's contempt finding for Mareva breach BY GLENN KAUTH Law Times T he Ontario Court of Appeal has restored a civil contempt finding against a Toronto lawyer who transferred money from his trust account despite a Mareva order restricting the funds. "With respect to the law of civil contempt, I think the decision is quite important," says Brauti Thorning Zibarras LLP partner Kevin Toyne, who represented the appellant, Judith Laiken. "For the future, everyone in the bar should know that if there's a Mareva injunction, you certainly cannot return the money to your client," says Toronto lawyer James Morton in explaining the appeal court's message in Sabourin and Sun Group of Companies v. Laiken. Laiken brought the matter to the appeal court after Superior Court Justice Lois Roberts set aside an earlier finding of contempt against lawyer Peter Carey in 2011. Carey was representing financial adviser Peter Sabourin in his long-running litigation with Laiken. In 2006, she obtained a Mareva order that prevented the sale, disposition, withdrawal, dissipation, assignment, dealing with, transfer, conveyance, conversion, encumbrance or diminishment of Sabourin's assets and included money held in trust accounts. A few months later, Sabourin delivered Carey a $500,000 cheque with no instructions that he deposited into his trust account. Sabourin later called Carey and told him to use the funds to settle with another group of creditors. Carey refused, citing the Mareva order. Sabourin then told Carey to settle with Laiken, but the lawyer was unable to do so. He then asked Carey to return the funds, which he did after deducting $60,000 for legal fees. In response, Laiken brought the contempt motion against Carey. Among other things, Carey argued the Mareva order was unclear and suggested that to retain the money would be to shelter it improperly from creditors since solicitor-client privilege prevented him from revealing the trust funds. Roberts initially found Carey in contempt in October 2011 but set aside her order almost a year later after finding she had the authority to reopen the matter. According to appeal court Justice Robert Sharpe's reasons in Laiken last week, Roberts by then had reasonable doubt as to whether the terms of the Mareva order were completely clear to Carey and his interpretation of it was wilfully blind. Last week, Laiken succeeded in her appeal of Roberts' findings and, as a result, Carey must pay her costs in the contempt proceedings. Among other things, Sharpe found Roberts misinterpreted his earlier comments in a stay application brought by Carey to the Court of Appeal as to whether a judge could revisit and reverse an initial finding of contempt. "What I intended to say was that until a judge has decided both the issue of contempt and the issue of sanction, an appellate court does not have a complete record of the case," wrote Sharpe. "Appeals should only come to this court on a complete record and in contempt, as in other areas, we should avoid a fragmented or piece-meal approach to hearing appeals before the first instance court has completed its adjudication of all issues." As a result, Sharpe found the procedure followed in the case was flawed and that the court shouldn't have allowed Carey to reopen the contempt finding. On the issue of whether Carey was in contempt, Sharpe also found against him. While Carey argued it would be wrong for him to shelter the funds from creditors, Sharpe noted Sabourin had in fact revealed their existence to a receiver in another matter. "I have difficulty accepting Carey's assertion that there was no way that Laiken or her www.lawtimesnews.com counsel could learn that he had his client's money in his trust account in the face of his evidence that his client had already disclosed that fact, albeit to another creditor," he wrote. "In my view, Carey committed an act that violated both the letter and the spirit of the Mareva order," he added. Sharpe also considered the issue of whether Carey had acted deliberately when he violated the order. On this front, he examined whether it's necessary to show someone acted intentionally in disobeying the court. On this front, he also found against Carey. "He did not desire or knowingly choose to disobey the order, but the lack of contumacious intent is a mitigating factor and not an essential element of civil contempt," wrote Sharpe, who also rejected submissions from English case law suggesting a more lenient approach to third parties, such as banks, that unintentionally violate a court order. "I am not persuaded that as the solicitor acting for Sabourin in relation to the Mareva order, Carey falls into the same category as the third parties discussed in those cases who were strangers to the litigation bound to respect the court order simply because they had knowledge of it. As the solicitor of record and as an officer of the court, Carey must be held to a higher standard. . . . As an officer of the court, a solicitor of record is duty-bound to take scrupulous care to ensure respect for court orders. In my view, as the solicitor of record in the case, Carey should be held to the same standard of compliance as his client who was a party." For his part, Carey has maintained he was just doing his duty. "For my clients, the order literally meant that they had to starve to death," he told the court in 2011 in defending his decision to return the money to Sabourin. While Morton emphasizes that Carey did nothing "evil or wrong," he says a lawyer in his position does have options, including going to court to seek directions or interpleading the money into court. LT

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