Law Times

Law Times • January 13, 2014 Page 5 NEWS 'Dynamic duo' of employment law team up BY JENNIFER BROWN Law Times A fter being courtroom competitors for more than 30 years, labour and employment lawyers Howard Levitt and Brian Grosman have joined forces to form Levitt & Grosman LLP in Toronto and suburban Richmond Hill. "Howard and I have gone toe-to-toe on some fairly major litigation," says Grosman who was semi-retired from Grosman Grosman & Gale LLP and had entered into a non-compete arrangement with his former firm that expired Dec. 31, 2013. "I had been talking to my firm for some time about me working a little less and the firm and I came to a mutual agreement that I would allow my name to continue with the firm and if there was any business developed in the GTA that I could act on it but only through the firm and not my own name. So over the last couple of years, I continued with corporate and plaintiff work through the firm in the GTA," he says. Grosman, who lives in Sterling, Ont., about 200 kilometres east of Toronto, has also had a small practice in the Belleville and Sterling area but was eager to come back to Toronto in 2014. He says he's returning "with all flags flying." "It was good to have the time off but I'm an energetic guy. I don't like ice fishing that much or hunting and so I thought I would come back to Toronto and find some office space," he says. "Since I've known Howard for many years, he was one of the people I called looking for space to set up practice and it was he who suggested we could be a dynamic duo. He felt I brought a different dimension to the practice because of my academic and government background. He thought it would be putting together the best of both worlds." Levitt and Grosman are both authors of employment law texts and both have successfully argued significant cases across Canada at every judicial level, including the Supreme Court of Canada. "When you get a chance to work with the other senior person in the country in the field, you jump at it," says Levitt. "He's a very different style than I am and clients want both for different types of cases. It just seemed like an incredible opportunity to attract a lot of new corporate clients." Grosman says he will continue to do high-end execu- Brian Grosman says he tive employment on the plaintiff practice in Toronto. side and major corporate work such as reorganizations and mergers. "My area of expertise has really been the executive employment area representing clients such as Shell Oil, CIBC, and Suncor," he says. "I'm hoping with the way we're coming together that we will offer corporate clients the kind of depth in this employment area maybe their general counsel can't provide." Grosman says he enjoys going to court and looks forward to going back but admits he and Levitt have different styles. "Someone told me the other day it's like the iron fist and the velvet glove coming together," he says. "It's two very different styles we're combining." When asked how he views the competitiveness of the employment law landscape in the country right now, Levitt says: "It sounds arrogant, but I don't have any competition. I really don't. If someone wants aggressive representation from someone who is very knowledgeable and wins all their cases, they go to me." He says he was interestwas eager to return to ed in working with Grosman because he was a "gentleman and early leader in the field." "I've known Brian for decades and I've always been impressed with both his acumen and his professionalism even when he was my direct competitor. Because we are such very different people, our emerging partnership may surprise some, but I believe that our contrasting approaches and methodologies give our clients great value, providing them supplementary, valuable options in their tactical determinations," says Levitt. LT Lawyers concerned about border officials searching their laptops BY YAMRI TADDESE Law Times A s concerns grow around government surveillance, the Canadian Bar Association is working on plans aimed at developing a policy on searching lawyers' laptops at the Canada-U.S. border. Lawyer Cyndee Todgham Cherniak moved a motion at a CBA meeting in August 2013 to create a working group that will, together with the minister of justice and the minister of public safety, develop a policy that creates some restrictions around the Canadian Border Services Agency's power to search lawyers' laptops at the border. The idea is that some of the information stored on lawyers' gadgets could fall under solicitor-client privilege. Todgham Cherniak, who's also active within the American Bar Association, says the CBSA shouldn't be able to download client information from her laptop each time she crosses the border. "As a customs lawyer, I got information on my laptop relating to clients and they're customs issues. I'm not going to hand over [that information], and the CBSA shouldn't be able to pull me over and say, 'Cyndee, we really want to get John Smith's information,' or 'We'll just stop her and download everything from her laptop.'" Todgham Cherniak says she has a "travel laptop" and keeps her clients' information out of reach. But not everyone is aware of the risk, she adds. "The majority of lawyers don't realize this. They don't even realize that the way that we set up [computers], as soon as you log into your laptop, all your e-mails come in. [The CBSA] will be able to get these e-mails if they connect your laptop to the Internet." Todgham Cherniak says she's hoping to set up a meeting with the ministers early this year. In the past, border officials searched laptops to look for inadmissible material such as child pornography, but the scope of their searches has increased over time, she adds. "Now we've got 9/11, we've got the NSA . . . and they are looking for other things in addition to the inadmissible material. They're looking to see if you are engaged in terrorist activities. They're looking to see if you're a threat to national security." Although the latest allegations against the U.S. security agency magnify the issue, Todgham Cherniak says the concern around laptop searches predates American whistleblower Edward Snowden's saga. In January 2013, members of the CBA's commodity, tax, and trade section raised their concerns with the Department of Justice. "We heard the Department of Justice's view that the CBSA has very, very broad powers and there's basically nothing that lawyers can do," says Todgham Cherniak, adding the meeting encouraged her to propose creating a working group. But the idea isn't to seek complete immunity from laptop searches for lawyers, according to Todgham Cherniak. "What we can do is say, 'Listen, we should have a process so that the good guys can say [they've] got client information that [they] don't want the CBSA to have access to. Let my laptop go to a judge and the CBSA can identify what they want and the judge can limit their search power.'" In a November 2013 ruling in R. v. Vu, the Supreme Court of Canada restricted police officers' authority to search laptops under a general search warrant and instead required them to seek separate authorization to peer into individuals' computers. The decision doesn't affect the CBSA's authority, according to Todgham Cherniak, who notes the agency has wide discretion to search all goods in travellers' possession under s. 99 of the Customs Act. Brandon Kain, a partner at McCarthy Tétrault LLP, says the laws relating to privilege at the border are in many ways unclear. "There's a significant lack of case law in Canada on how privilege operates in cross-border situations," he says. When the lawyer isn't Canadian and brings in a laptop carrying foreign clients' information, the situation is even more uncertain, he notes. "Let's say a U.S. lawyer provides advice to clients in the United States and comes to Canada for vacation and brings a laptop with him," says Kain, who has written about solicitor-client privilege. "If the CBSA were to look at that communication and the lawyer wanted to challenge that in Federal Court, what laws would apply?" he asks. LT • Professional Development • Cutting Edge Content • Variety and Flexibility • Networking Opportunities ...than ever before. n v f r FEBRUARY 6-8, 2014 Be a part of Canada's largest legal conference. Institute 2014 is your chance to connect with over 1700 of your peers, 300 leading speakers and choose from 29 accredited sessions. Get all your 2014 credits in just 2 days. Register at oba.org/Institute2014 Follow us on Twitter @OBAcpd #OBAInstitute www.lawtimesnews.com Untitled-5 1 13-12-19 3:13 PM

• Cover