Law Times

Law Times • march 3, 2014 Page 7 www.lawtimesnews.com COMMENT Prof urges pause on allowing more schools to follow Lakehead approach ntario appears set to get more lawyers due to reforms to the rules governing entry to the profession. is may mean more competition, lower rates, and greater access to justice. Alternatively, Ontario may come to resemble U.S. states where lawyers are plentiful and ambulance chasing abounds. In Canada, access to the legal profession was long regulated in two main ways. First, students became lawyers only upon admittance to a Canadian law school. Second, law school graduates had to article before they could join the profession. For decades, law school enrolment was stable or even in decline relative to population growth. Lately, that has changed. Some Ontario law schools have increased enrolment, presumably to grow their revenues in the face of declin- ing public funding and a provincial tuition freeze. More dramatically, the number of foreign-trained students accepted by Canada's law societies has risen rapidly to 730 in 2012 from 260 in 2009. Most of these students appear to have been round-trip Canadians who went abroad for law school, oen at significantly higher cost than in Can- ada. Also, new immigrants to Canada who trained abroad as lawyers have sought legal work in Ontario and have sometimes pressed for reforms to facilitate their entry. In 2006, the province introduced the Fair Access to Regulated Professions Act (the first of its kind in Canada) and, in 2009, the government gave $4 million to the University of Toronto to help new immigrants with legal experience become lawyers in Ontario. Predictably, this growth put pressure on the other main regulator of en- try to the profession: articling. Law firms can only accommodate so many students each year and the number of unplaced ap- plicants rose to almost 15 per cent in 2013 from about six per cent in 2009. In response, one option for the Law So- ciety of Upper Canada was to let the market sort things out based on the es- tablished rules. One might assume students would stop attending law schools, abroad or in Canada, whose graduates had a poor record of getting articling positions. Likewise, foreign lawyers who expected to practise law in Ontario without extensive further training might conclude that was unrealistic. On the other hand, markets aren't perfect and the individual and political costs of market correction can be high. Instead of leaving it to the market, the law society has signaled it's willing to liberalize access to the profession by phasing out articling, albeit in a round- about way. In November 2013, the law society approved a parallel training program that will allow law school graduates to qualify for the profession based on further (costly and unpaid) in-class training and placements instead of (paid) articles. More significantly, the law society has relieved graduates of the new law school at Lakehead University from the articling requirement. at is, it has preapproved future Lakehead graduates for access based on the usual three years of law school study. When the Lakehead approach emerged, some people promoted it as a regional solution to provide more lawyers in northern Ontario and remote communities. It has now become clear that the law society may accept Lake- head as a model for other institutions and that all schools will face pressure to seek fast-track eligibility for their own students. In time, we can expect all sorts of law schools in Canada and abroad will be able to produce ready-made lawyers for Ontario. e only remaining filter on access to the profession would be the law society's bar exams. In Ontario, those exams have a fail rate thought to be less than 10 per cent; by comparison, the New York bar exam's fail rate is nearly 40 per cent. Even if the Ontario bar exams were more rigorous, Ontario will have adopted the U.S. approach. is has potentially far-reaching consequences. For example, students would face a greater likelihood of being unable to enter the profession aer — instead of before — they have invested in a law degree. Skills training for future lawyers would take place more in the abstract before trainers and students know what their career stream is likely to be. Law schools may end up with far more students whose financial resources outweigh their academic qualifications. For the profession and the public, perhaps most importantly, more lawyers will enter the market. is may improve access to justice; it could also increase litigation and undermine quality and professionalism. As a law professor, I always encourage bright minds wishing to study the law. But I think the law society should pause in order to examine and debate the consequences before it allows more law schools to follow the Lakehead approach. Likewise, the Ontario government needs to ensure the benefits out- weigh the costs. Once the waves of ready-made lawyers start rolling in, it won't be easy to close the floodgates, if that's what they turn out to be. LT uGus Van Harten is a professor at Osgoode Hall Law School. In 2000, he articled at the Ontario Court of Appeal. Seniors' home fire a reminder about difficulty of proving negligence he determination of liability regarding fire loss cases in Ontario oen hinges upon the finding of a specific cause of the fire. If it is impossible to say how the fire origi- nated, the owner or occupier of a building may be relieved of liability altogether under s. 76 of the Fire Protection and Prevention Act, an issue that has taken on renewed significance in light of the recent tragedy at a Quebec seniors' home. Twenty-eight people have now been confirmed dead and four others are presumed to have died aer the horrific blaze at the Résidence Du Havre in L'Isle Verte, Que. e initial focus of the public was on the devastating effect the tragedy inflicted on the victims and their families. Attention has now shied towards the placement of blame. People are asking some very hard questions as litigation looms. e investigation into the cause of the fire is still in its infancy and police have not ruled out a criminal act. A burning cigarette is also just one of the possible causes of the deadly blaze. e tragedy prompted me to ask the following question: If investigators never find a cause, from whom can the victims' families seek compensation for the loss of their loved ones? A review of case law and legislation in Ontario begins to shed some light on possible outcomes if the tragedy had occurred in this province. Before considering legislation and case law, it will be helpful to refer to some authorities that deal with the rule, doctrine or maxim of res ipsa loquitor (the thing speaks for itself ). As Lord Dunedin said in Ballard v. North British Railway Co.: "I think that, if the defenders can show a way in which the accident may have occurred without negligence, the cogency of the fact of the accident by itself disappears, and the pursuer is le as he began, namely, that he has to show negligence." Much more recently, in the 1992 British Columbia Court of Appeal case of Mazloom v. Central Mountain Air Services Ltd., then-justice D.M.M. Goldie wrote: "It will be seen that res ipsa loquitur may apply to the disappearance of an aircra as it may to any inexplicable injurious event for which the defendant advances no innocent cause. e condition of its application is satisfied when the evidence at trial supports an inference of negligence and the defendant offers no acceptable explanation to counter or neutralize that inference. e trier of fact in this circumstance may then treat the fact of the injurious event as evidence of negligence." e Accidental Fires Act echoes s. 76 of the Fire Protection and Prevention Act and has only one section. Section 1 provides as follows: "No action shall be brought against any per- son in whose . . . building or on whose land any fire accidentally begins, nor shall any recom- pense be made by that person for any damage suffered thereby." In Neff v. St. Catharines Marina Ltd., the Ontario Court of Appeal confirmed that under s. 1 of the current Accidental Fires Act, an "accidental" fire would be a fire that was incapable of being traced to any cause. A precondition for the finding of negligence under the doctrine of res ipsa loquitur is that the occurrence must be such that it would not have happened without negligence. us, if this fire had occurred in Ontario and investigators found no definite cause, it is possible the court could find no negligence on the part of the owner of the seniors' home. Conversely, if investigations revealed a particular cause that was the result of the own- ers' negligence, the court could find them liable for damages. A 2012 summary judgment decision, Kidman v. Christoforatou, illustrates such a situation. In this case, a fire destroyed a century-old church converted into rental apartments that resulted in the deaths of two young children and the serious injury of another. e defendant property owner claimed the fire was "accidental" in the sense that it could not be traced to a particular cause or in the sense that it was not caused or spread by negligence. Counsel for the plaintiff defeated the defen- dant's motion. Within the motion, the plaintiffs relied on the fire marshal's finding that the cause of the fire was electrical malfunction. With a clearly defined area of origin, the elimina- tion of all other ignition sources, and no evidence inconsistent with the hypothesis, it was proper to determine that electrical failure was the source of ignition. I was in disbelief when I learned there was a lack of automatic sprinkler systems at Rési- dence Du Havre. Authorities will undoubtedly find this fact to have contributed to the spread of the fire. How is it that a facility specifically built for individuals who would have great difficulty making a swi emergency exit in the case of a fire did not have automatic sprinklers? At first blush, this should be the nail in the coffin for the owner of the seniors' home. Shockingly, however, in Quebec the installation of automatic sprinkler systems in seniors' homes is not mandatory. Without a violation of the fire safety or building code, the lack of such safety equipment will not be determinative of negligence on the part of a building owner under statute. ere is something inherently wrong about this. In 2014, Ontario became the first province to require older care facilities to retrofit them- selves with automated sprinkler systems. e timeline to retrofit, however, clearly places con- cern for cost above the safety of a vulnerable group. Licensed retirement homes and private care facilities have up to five years to install sprinklers while publicly owned nursing resi- dences have until 2025. e loss of so many people in such a tragic way is truly lamentable. What remains unclear is whether or not authorities will find the owner of the seniors' home to have been at fault. It may be that no one will ever be held accountable for this tragedy. Ascertaining fault, however, is just the first of many steps on the long road to proving negligence in law. LT uErik Joffe is a lawyer at Neinstein & Associates LLP. u SPEAKER'S CORNER BY eRIK JOFFe For Law Times BY guS vAN HARteN For Law Times T O

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