Law Times

Law Times • January 6, 2014 Little for victims Continued from page 1 and ensuring that victims have a more effective voice in the criminal justice system," said Blaney. "We have taken concrete action to ensure the voices of victims of crime are heard. I am pleased to continue our work to formally recognize the rights of victims of crime in the criminal justice and correctional systems." But Criminal Lawyers' Association president Anthony Moustacalis, who was a prosecutor for five years, says the bill of rights isn't likely to address the two issues that are most important to victims: a speedy process and adequate compensation. At best, a victims bill of rights is specious, says Moustacalis. "This government is very good at passing legislation that sounds good but has no real effect on the constituents that it's seeking to support. Victims aren't going to get anything more out of this than they already have," he says, adding Ontario's attorney general is already good at letting victims know of important updates, reviewing the case with them, and explaining the compensation that's available to them. "The system has a lot of balance in it." The best way to further the victim's cause would be to provide more money and legal advice to them, Moustacalis adds. In Ontario, the maximum amount a victim of any crime can receive in compensation is $25,000. Recently, the federal government doubled victim surcharge fines and made them mandatory, a move MacKay described as the government "sending a signal" that offenders must pay victims for the damage they caused. But the legislation has drawn criticism for taking away judicial discretion. Several judges have found ways to resist the legislation by giving criminals a very long time to pay the fine or not imposing it at all. The government is now appealing some of those decisions. According to Moustacalis, the government is "looking for money from those who cannot afford it" through its surcharge legislation. The federal government says those who are unable to pay the surcharge "will be able to discharge the victim surcharge by participating in a fine option program or through alternative mechanisms." No such program exists in Ontario, however. LT Page 5 NEWS 'Sensible and refreshing' approach hailed Continued from page 1 donation received, but donors ultimately ended up out of pocket after the Canada Revenue Agency reassessed their returns and demanded repayment plus interest. In October, the court approved a partial settlement with several defendants, including prominent Nova Scotia tax lawyer Edwin Harris, whose biography and comfort letter appeared in the program materials. The partial settlement was worth $28.2 million with counsel for the plaintiffs claiming one-third, or $9.4 million, based on their contingencyfee agreement. Belobaba suggested legal fees of one-third of a settlement would be a fair level for presumptive validity since it falls in line with percentages traditionally charged and accepted in the personal injury field. Paliare Roland Rosenberg Rothstein LLP's Margaret Waddell, who with co-counsel Sam Marr of Landy Marr Kats LLP represented the plaintiffs in Cannon, says the decision brings Ontario in line with other provinces where judges have been much less reticent to sanction legal fees of more than 25 per cent. "I think some judges look at the numbers and they seem big compared to your average personal injury cases. It's probably bigger than anything they saw in their own practices, which can make it harder to digest. It's a matter of them becoming aware of and comfortable with these amounts as much as anything," says Waddell. "Hopefully, the other class action judges in Ontario will follow suit and say, yes this is the way things should go." Jonathan Ptak, a partner with Toronto's Koskie Minsky LLP, calls Belobaba's decision a "sensible and refreshing" approach to class action legal fees. "Representative plaintiffs are typically very well briefed by counsel. They are aware of the nature of litigation and risks involved when they reach agreement with class counsel," he says. Belobaba found the presumption of validity is rebuttable but only "in clear cases based on principled reasons." They include: • Where there is a lack of full understanding or true acceptance on the part of the representative plaintiff. "Settlement agreement notices should bold-face or highlight the legal fees portion in order to focus class members' attention on the amount being requested. Affidavits from the representative plaintiffs or class members supporting the legal fees request would certainly be relevant," wrote Belobaba. • Where the agreed-to contingency amount is excessive. "If class counsel seek higher amounts, say 40 or 50 per cent, they should be prepared to provide a detailed justification because these higher amounts fall outside the penumbra of what, in my view, is currently acceptable," wrote Belobaba. • Where the application of the presumptively valid one-third contingency fee results in a legal fees award that's so large as to be unseemly or otherwise unreasonable. According to Ptak, these "safety mechanisms" offer protection to the public and the class while simplifying the process for approving counsel fees. He says presumptive validity would improve access to justice by giving lawyers a level of certainty about their potential return on a particular case. "I think the decision strikes the correct balance," he says. "Access to justice begins with the representative plaintiff and with class counsel. If class counsel has some predictability about their fees, at the end of the day they may be more willing to take on certain types of cases." Belobaba also predicts presumptive validity would also "take the pressure off certification-motion costs awards as a method for forward-financing the class action" as well as hasten the demise of "multipliers" in class action retainer agreements. LT Part-time, Executive LLM program for corporate counsel and practising lawyers Information T Faculty of Taught by U of Session Wednesday, December together with top Law professors, 7, 2011 5:30 - 7:00 pm Friday, December 9, 2011 8:00 - 9:30 am international faculty from U of T School of Management MIT-Sloan Faculty of Law, Faculty Lounge 78 Queen's Park, Toronto and Please feel free to drop in anytime during these hours. expert practitioners. No registration required. EVENT: For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. GLLM_LT_July8_13.indd 1 www.lawtimesnews.com 13-07-03 10:51 AM

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