Law Times

Law Times • October 21, 2013 Page 5 NEWS Lawyers 'have a huge appetite' for amicus work Continued from page 1 tribunal buildings)," the report states in its recommendations. "Law and family law information centres should be expanded and integrated with all court services. Civil and family duty counsel and pro bono programs (including lawyers and students) should also be expanded." While the report refers to use of duty counsel, finding someone can be quite a challenge, according to Cohen. "We know there's going to be a lot of cases where a pro bono duty counsel would help but the hiccup is it's not always easy to find somebody who will be someone's lawyer to enter into a client-lawyer relationship," he says. But lawyers can still provide useful assistance through the role of amicus curiae, he adds. When it comes to working pro bono as friends of the court, lawyers don't need a lot of prodding, Cohen notes. "They have a huge appetite for it. We find that when we build programs that are in our view a good match between the talents and goodwill of the profession on one side and for services on the other side, we find that recruitment is quite easy." For her part, Matas says she expects some challenges as she and colleague Elizabeth Grace take on the role of amicus curiae. other challenge for lawyers, she notes, is remembering they're not advocates. "As amicus you have to be very careful that you're not acting as advocate to either side." PBLO will select civil cases where it would be appropriate to get amicus curiae involved, The disadvantage of not representing the client means lawyers need to quickly acquaint themselves with the complexities of the case, she says. "You have to come in late and very quickly get familiar with all of the material that's available," she says. The says Cohen. "I can never be positive that someone is going to step forward, but my experience has been exclusively that lawyers have a very, very strong appetite to do this kind of work," he says. LT The Advocates' Society Arbitration and Mediation Advocacy Practice Group will honour Yves Fortier, P.C., C.C., O.Q., Q.C. with The Roger Fisher Lifetime Achievement Award in ADR Useful framework set Continued from page 1 as they see fit," he wrote. "This includes deciding the shape, content, and pace of the litigation. Class counsel may choose to slow matters down because of pending appeals, or developments in other jurisdictions, or indeed for any good reason that class counsel believes is in the best interests of the proposed or actual class. "Generally speaking, no carriage transfer motion should ask the court to review and secondguess the action or inaction of class counsel." But there are still some occasions where it would be appropriate to replace a law firm that's taking too long to get things done, Belobaba suggested. "One such case is where there is clear and unreasonable delay," he wrote. To successfully replace a law firm, according to Belobaba, a party moving a carriage transfer motion must prove the delay is unreasonable "by current class action litigation standards"; that there's evidence of harm to class members; and that the firm's explanation for the time lag is inadequate. Removal of a firm is also justifiable if bringing a certificate motion in due time is either unworkable or against the interests of the class, Belobaba added. McPhadden Samac Tuovi's motion "fails on each of the four criteria," he continued. The law firm "failed to show that most class proceedings are certified in less than three years," he noted. "It is well-known that class proceedings generally move at a glacial pace. (One need only recall the difficulty that plaintiffs' have in securities class actions of even commencing an action within the prescribed three-year time limit.) If a moving party alleges unreasonable delay on the part of carriage counsel, it must provide comparative evidence to support this submission. No such evidence was provided." McPhadden Samac Tuovi didn't show any evidence of harm or prejudice to the class members, said the judge, who added he was satisfied with Kim Orr's explanation of why the delay occurred. Counsel needed to co-ordinate with experts on the American side of the matter and wait for the outcome of appeal proceedings in a related case, he said, noting the reasoning was "credible, and certainly could not be described as 'inadequate.'" The issue was a novel one, according to Belobaba. Joel Rochon, who leads the class action practice at Rochon Genova LLP, says the judge set out a useful first framework. "His decision seems to have recognized the reality that there is typically a complex back story, an unseen choreography, which frequently informs the pace of class action litigation. This is particularly true in complex cross-border class actions," says Rochon. "That said, when delays become patently unreasonable and there is evidence of prejudice, motions to replace class counsel seem logical and will be demanded by class members who are left dangling through the perceived inaction of lawyers." Bryan McPhadden, counsel for McPhadden Samac Tuovi, says the firm applauds the court's finding that subsequent carriage transfers are permissible. "I think that will be helpful to prosecution of class actions," he says. "That this kind of motion can be brought is significant. We applaud it." On the point that Kim Orr's delay was reasonable, "We obviously felt differently," he says. McPhadden suggests the test for unreasonable delay set out in Belobaba's decision will evolve over time. Belobaba declined to award costs to Kim Orr after finding the motion had forced the firm to commit to speeding things up. "I am denying costs because it was obviously this motion and the threat of being replaced as carriage counsel that encouraged Kim Orr to commit to filing a certification motion within two months," he wrote. LT Thursday, October 24th, 2013 The Ritz-Carlton, Toronto 181 Wellington Street West Reception and Dinner beginning at 6:30 p.m. Dress: Business Attire Tribute Speakers: V. V. Veeder, Q.C., Essex Court Chambers, London Pierre Bienvenu, Ad. E., Norton Rose Fulbright, Montreal Judge Stephen M. Schwebel, Essex Court Chambers, London Video greetings by The Right Honourable Beverley M. McLachlin, P.C., Chief Justice of Canada For more information, contact Rachel Stewart (416) 597-0243 ext. 129 or rachel@advocates.ca Generously sponsored by: Premier Sponsor Media Sponsor Wine Sponsor Supported by: AdvocateSociety_LT_Oct21_13.indd 1 13-10-16 12:28 PM TURN TO COMPREHENSIVE COVERAGE OF THE CASES BEHIND THE HEADLINES NEW EDITION CANADIAN MEDICAL LAW: AN INTRODUCTION FOR PHYSICIANS, NURSES AND OTHER HEALTH CARE PROFESSIONALS, 4TH EDITION JOHN C. IRVINE, M.A. (JURIS.), B.C.L., PHILIP H. OSBORNE, LL.B. (HONS.), LL.M. AND MARY SHARIFF, B.Sc., LL.B., LL.M., Ph.D. Canadian Medical Law is your first stop for research. A remarkably userfriendly guide to the legal issues relating to patient care and treatment, it gives you a comprehensive review of medical law in Canada from a multijurisdictional perspective – prepared by renowned experts in the area. Save time with all the relevant medical/legal principles and concepts at your fingertips. Work efficiently and confidently with helpful case studies, sample advance directives and other planning tools prepared by renowned experts. Quickly understand the latest developments on such emerging issues as mental health treatment, withdrawal of treatment and assisted suicide. EXPERT COVERAGE OF THE MOST RECENT DEVELOPMENTS AND LEADING-EDGE CASES ORDER # 985547-65203 $150 Hardcover approx. 750 pages October 2013 978-0-7798-5547-6 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. • • • • • A complete and thorough update of the chapter on the law and mental illness A re-organization of the chapter covering reproductive choice, with a new subsection on assisted human reproduction New and revised case studies on withdrawal of treatment New sample advance directive forms and planning tools A new discussion on assisted suicide in the U.S. and Europe AVAILABLE RISK-FREE FOR 30 DAYS Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 AUTHORITATIVE. INNOVATIVE. TRUSTED. www.lawtimesnews.com

• Cover