Law Times

www.mckellar.com McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM A. NEUMAN ASSOCIATES INC. Call 416.223.5991 www.IFAccountant.com Investigative & Forensic Accounting Specialists Proven Expertise ntitled-6 1 1/8/08 3:28:10 PM $3.55 • Vol. 19, No. 10 Covering Ontario's Legal Scene March 31, 2008 Tel: 416.322.6111 Toll-free: 1.866.367.7648 www.doprocess.com Industry leader in legal software for real estate, corporate and estates for over a decade Fees ruling could have access to justice implications A lawyer involved in a class action lawsuit that allowed same-sex couples to collect Canada Pension Plan survivor funds says he hopes the Ontario Court of Appeal will understand the access to justice implications of a Superior Court decision blocking lawyers in the case from collecting fees, esti- mated to exceed $15 million. "I am deeply disappointed in the ruling," Doug Elliott of Roy Elliott Kim O'Connor LLP tells Law Times. "Not only because of the impact on the great team of lawyers that worked so hard to achieve an enormous and landmark victory for our clients, but also because of the chilling effect I'm convinced this will have on class actions of this type." Justice Ellen Macdonald last month ruled that a retainer agree- ment she approved for the case, Hislop v. Canada (Attorney General) in 2004 doesn't comply with provi- sions of the pension plan. The case was originally brought forward by gay activist George Hislop and is considered the first class action in the world to put forth the claim that gay and lesbian rights had been violated. There are believed to be about 1,500 claimants involved. Under the retainer agreement, the class action lawyers' fees were to be covered by a payout of half of prejudgment arrears owed to the survivors, with half of that amount going to Elliott's firm. While the class action lawyers accrued over $5.3 million in fees in the sev- en-year case, Macdonald awarded them for their hard work by adding a multiplier of 4.8 to their fees, leav- ing the total at over $15 million. But in her Feb. 29 ruling, Macdonald agreed with the attorney general's argument that s. 65 of the CPP — which states, "A benefit shall not be assigned, charged, attached, anticipated, or given as security, and any transaction purporting to a assign, charge, attach, anticipate, or give as security a benefit is void" — cancels out the payment plan. Macdonald rejected the class action lawyers' argument that s. 32(3) of the Ontario Class Proceedings Act which states, "Amounts owing under an enforceable agreement are a first charge on any settlement funds or monetary award" — should prevail over s. 65 of the CPP. Macdonald noted, "The s. 65 Judge shortage a 'crisis' Province's family court system 'broken' OTTAWA — Family court lawyers are stunned at learning how the government and opposi- tion MPs recently rushed a bill through the House of Commons that touches the heart of Canada's justice system — the courts. They say the Harper government, with the opposition turning a blind eye, has no interest in addressing a "crisis" that grips family courts in particular, especially in Ontario. But Liberal Senator George Baker tells Law Times the Senate will give the bill the attention it deserves and could take "months" debating it and hearing witnesses in the Senate's legal and constitutional affairs committee. The bill, C-31, proposes to add a mod- est total of 20 judges to federally appointed superior courts, to be allotted among all 10 provinces and the territories. It is not even a drop in the bucket compared to the existing complement of 984 judges in the superior courts, lawyers say. Unlike a 2005 Liberal bill that would have specifically added 27 new family court judges, the Conservative legislation does not mention the family court system, and instead designates seven of the 20 new bench positions for a tri- bunal the government is establishing to settle long-standing aboriginal land claims. That leaves only 13 new judicial posts for a system already bursting at the seams, espe- cially in Ontario. The bill received only one hour of debate as it sailed through the Commons in January. By the time the House rocketed it to the Senate on March 14, it had received only one hour of study by the Commons justice committee. The only witnesses were from the government: Justice Minister Rob Nichol- son, Catherine McKinnon, the department's counsel for judicial affairs, Judith Bell, anoth- er counsel for judicial affairs, and David Near, judicial affairs adviser. To the disappointment of Alfred Mamo, a London, Ont. lawyer who led an exhaustive study last year into Ontario's family courts, the bill has no specific provision to designate any of the judges for family court. Mamo's report, still under consideration by Attorney General Chris Bentley, calls on the "What's more fundamental to our system, our democracy, than access to justice? Without that system, we really have anarchy," says Alfred Mamo. Inside This Issue Health & Safety 5 Social Justice 6 Focus On Corporate Restructuring & Insolvency 9 Quote of the week "This is part of a move towards legislative changes that will authorize instruc- tions to be made in all sorts of areas, which will reduce political accountability." — Lorne Waldman Immigration lawyer See Power, page 4 Doug Elliott predicts a decision blocking lawyers from collecting fees will have a 'chilling effect.' www.lawtimesnews.com See Shortage, page 2 BY TIM NAUMETZ For Law Times See Reaction, page 2 BY ROBERT TODD Law Times

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