Law Times

Law Times • sepTember 22, 2014 Page 5 www.lawtimesnews.com reasonable price. So we are, for many of them, an entry point for the legal system and we tend to be often local and we just don't feel that having other shareholders to be answerable to is going to im- prove anything for our clients." She adds: "We haven't been able to appreciate what the con- cern is so far that this is designed to cure. We're not clear on how [alternative business structures are] beneficial to our clients be- cause in many respects, we feel we're already there." With recent high-profile real estate fraud investigations like the Meerai Cho matter, a case in which $14 million in condo deposit fees went missing, part of the concern for solicitors is an "overreaction" to such situa- tions, says Michael Ras, director of public affairs for CDLPA. "Solicitors are nervous about an overreaction of regulation on that, less from the law society and more from what the prov- ince could do," he says. "They're wary of those things, and I think having more solicitors [at the law society] with a tempered and profession- al perspective will help in those discussions." Cho's arrest on fraud charges last month has once again revived discussions about whether the law society should require dual signa- tures on trust accounts. Accord- ing to Ras, the idea is a concern for many solicitors, lots of whom are sole practitioners. "A lot of solici- tors I've spoken to say, 'Yeah, that probably makes sense.' And a lot of other solicitors I've spoken to say, 'Wait a second. I'm a sole prac- titioner and real estate deals will disappear from me.'" Many solicitors feel their small numbers at Convocation mean the regulator doesn't fully appreciate what their day-to- day practice involves, Ras notes. "What I understand in speaking with them is that they don't feel that the law society fully appre- ciates the challenges the solicitor bar is facing and particularly the real estate bar in their day-to- day business dealings. And so regulatory matters, for example, that the law society might con- sider don't fully appreciate the challenges. So the nuance of regulation might be lost in that." Solicitors who are members of Convocation are already busy with the many committees seek- ing their perspective, Ras notes, adding it's difficult for them to meet the demands with vigor- ous input at all of those groups. Johnson says perhaps what solicitors need is a guaranteed number of seats at Convocation, as is the case with paralegals. While there hasn't been a dis- cussion at the Carleton law asso- ciation on how many designated seats would be appropriate for solicitors, "I think we would like to see that," she says. The focus now is to raise awareness among solicitors, she adds. "They aren't aware that we're underrepresented at Con- vocation. They aren't aware that paralegals have guaranteed seats at the table, and we believe that our views should be represented when decisions are being made." While there's little or no re- search on the reasons for the scar- city of solicitors at Convocation, the speculation is that the work- load involved in being a bencher dissuades potential solicitor can- didates whose transactional jobs require them to be physically present at their practice. Part of the problem is also voter apathy, says Ras, who calls the 37-per-cent voter turnout in the last law society election "appalling." If more solicitors vote, they'll naturally "gravitate towards vot- ing for other solicitors," he says. "And I think that will address some of the imbalance that's on Convocation." In the meantime, the Ontario Bar Association will also be pro- viding resources to all lawyers in Ontario who run for bencher positions. "I think it's important that we have the full range at the table," says OBA treasurer Doug Downey. "I'd like to see more people in general." 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TODAY'S TOP TEN LEASE ISSUES PLUS THE FRANCHISE TRIANGLE Toronto • November 26, 2014 REGISTER ONLINE www.lexpert.ca/cpdcentre WEBCAST OPTION AVAILABLE! For more information or to register, please contact Lexpert® Events at 1-877-298-5868 or e-mail: register@lexpert.ca LEXC1238_Lexpert course ad for fall_7.875x6.5.indd 1 14-07-29 11:20 AM Continued from page 1 time for dedicated bencher seats for solicitors? "I think it's very ill-advised for a trial judge to comment in a decision, or for that matter out of court, on the merits of an ap- peal from the judge's own decision." Boyle's decision "reads more like a re- spondent's factum," adds MacKenzie. While the judge criticized McKesson Canada's ap- peal factum for lacking "polite qualifiers," MacKenzie says he found nothing inappro- priate in it. "I thought the criticisms of the appel- lant's counsel were very unfair. Based on the passages that the trial judge quoted from the appellant's factum, which he found objec- tionable, I have to say I disagreed entirely," he says. The issue for Boyle, it seems, was how the appellant had worded the factum. "English is a very rich language; the ap- pellant and its counsel could have forcefully advanced their chosen grounds for appeal without the use of unqualified extreme statements which attack the personal or professional integrity of the trial judge," he wrote. In the ruling, Boyle quoted three specific sentences he took issue with: • "In these circumstances, I am deeply troubled by the statement by the Ap- pellant in paragraph 89 of the Factum that '[t]he Trial Judge did not, in fact, leave this question for another day, as he claims to have done.'" • "I am similarly deeply troubled by the statement by the Appellant in para- graph 84 of the Factum that '[t]he Trial Judge, without acknowledging it, has challenged whether the written terms of the Agreement ref lected the 'real' allocation of risk between MIH and McKesson Canada.'" • "I am equally concerned by the state- ment of the Appellant in paragraph 88 of the Factum that '[t]his is so notwith- standing the Trial Judge's contention, at paragraph 132 of his Reasons, that 'in this case, I do not need to [consider no- tional continued corporate control] in order to fully dispose of the appeal with respect to the proper transfer pricing adjustment.'" Despite Boyle's emphasis in underlining his concerns, MacKenzie says that when ad- vancing appeals, the best approach, and the one courts of appeal appreciate, is a direct one. "If you're arguing that the trial judge was wrong, say so, explain why you say so. There's certainly no requirement that your argument be modified or qualified in any way," he says. Tax lawyer Robert Kreklewetz of Millar Kreklewetz LLP says he, too, has never seen anything like Boyle's decision. "It's a very unique decision," he says. Part of the surprise, he says, is that no one had brought a motion to recuse the judge. "If you're sitting there as the appellant's counsel, you're probably sitting there saying, 'Wow, what just happened?'" he says. "This was on his own motion." While the issue of recusal does give the judge leeway to talk about what a party has said in a factum, Kreklewetz wonders whether the judge could have arrived at the same decision without the analysis he did on the brief in this case. "He seems to spend a lot of time more or less setting out his particular side of the story and more or less indicating why he thought some of the statements in the ap- peal are either not correct or supportable, but I was left wondering whether he really needed to say that," says Kreklewetz. "One wonders if he could have said: 'Let's assume the statements are correct. If they are correct, should I recuse myself from potentially mishandling the Tax Court case? And if they're not correct, should I recuse myself because a reason- able person might be very upset having read these incorrect statements about him?' "You begin to wonder if he needed the detailed reasons or not. I'm not saying he shouldn't have, [but] you're just left won- dering if he could have gotten to the same point without all the detailed analysis." Kreklewetz says what happens next in the case will be interesting. "The note I made after reading it is that I really want- ed to read the Federal Court of Appeal's decision on it," he says. LT Judge criticizes 'extreme statements' in appeal factum Continued from page 1

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