Law Times

Page 4 January 6, 2014 • Law Times NEWS 'Outrage' key to fixing access problems BY MICHAEL McKIERNAN For Law Times J ohn Sims wants to make you angry. The former deputy attorney general of Canada chairs the Canadian Bar Association's access to justice committee, which has just released its full "Reaching Equal Justice Report: An invitation to Envision and Act," that fleshes out the summary unveiled at the CBA's annual conference in the summer. The 172-page tome outlines the "abysmal" state of access to justice in this country and proposes 31 targets for the profession intended to transform the situation by 2030. Sims tells Law Times he's hoping for an emotional response from those who make it through the report. "Equal justice is impossible without public engagement because governments respond to public pressure. That's what is missing today. There's no dissatisfaction or outrage at the things we're falling short on. Until the public are aware of how badly we're doing, they won't bring that pressure to bear on government," says Sims. "Now we need to get out, talk to people in practical terms about next steps, and make them aware of the issues." A number of the report's targets rely on the CBA converting public anger into government action, with the authors calling for a return to 1994 legal aid funding levels by 2020, as well as eligibility expansion to cover all Canadians at or below the poverty line. With so many players involved in the justice system, many of them jealously guarding their independence, Sims says it has traditionally been tough to innovate in the sector. But he hopes that will change by 2030 when the targets expire. "Although ambitious, these 31 targets are definitely possible. Ambitious to us is not a synonym for impractical or unachievable or impossible. On the contrary, with hard work, we think they are all very doable," he says. Julie Macfarlane, a professor at the University of Windsor's faculty of law, says the 17year timeline for the report's targets could be "pretty depressing." "It may be realistic to say the degree of system and culture change needed is going to take that long, but only talking about that very large scale is not going to get us there. It has to begin immediately," she says. LT Man looking to take vexatious litigant finding to SCC BY YAMRI TADDESE Law Times S uperior Court Justice Frank Newbould has dismissed an action against lawyer Gary Caplan and Teplitsky Colson LLP after finding the applicant behind claims of conspiracy and breach of fiduciary duty had no "cogent" evidence to back up his claim. The issue in the case dates back to 2001 when Caplan represented William Malamas on a motion to regain ownership of his Danforth Avenue property in Toronto. Malamas has since sued several parties, many of them lawyers, associated with the sale of the property. In 2012, the court declared him a vexations litigant. After losing his appeal of that finding at the Ontario Court of Appeal, he's now seeking leave to appeal from the Supreme Court of Canada. CANADIAN LAW LIST 2014 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: of more than 78,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound Published February each year On subscription $159 L88804-627 One-time purchase $176 L88804-627 Multiple copy discounts available Prices subject to change without notice, to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation Untitled-7 1 www.lawtimesnews.com 13-12-19 3:17 PM William Malamas is seeking leave to appeal a vexatious litigant finding from the Supreme Court of Canada. Photo: Yamri Taddese Malamas asserted that as his lawyer, Caplan had failed to argue the mortgage of the Danforth Avenue property wasn't in arrears at the time the mortgagee refused to extend the mortgage. Caplan denied this and said he pointed out all material evidence before the court. The same judge had declared Malamas a vexatious litigant in June 2012. Due to that finding, the onus was on Malamas to prove his case against Caplan wasn't a waste of judicial resources, according to Newbould. "Mr. Malamas is not entitled without leave to have discovery in this action in light of the vexatious proceeding order made against him. When a person has been declared to be a vexatious litigant, that person has an onus in seeking to continue a proceeding to establish that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding," wrote Newbould, adding he didn't see "any reasonable grounds" for allowing the action to proceed. But Malamas, a self-represented litigant, tells Law Times that as the moving party, the burden of proof should have been on Caplan instead of him. He also says it was unfair for the judge to ask him to make his submissions before Caplan, who moved the motion. The structure caused him to lose his "strategy" during the motion hearing, says Malamas. "This [recent] action proves that the vexatious litigant application was an abuse of court," he says. LT

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