Law Times

Page 6 December 8, 2014 • Law Times www.lawtimesnews.com COMMENT A bit of optimism after annus horribilis here's no question 2014 started out as and has continued to be an annus horribilis for many in the legal profession. The collapse of Heenan Blaikie LLP in February certainly left many people reeling. Most affected, of course, were the many people who worked there. Lots of lawyers quickly landed at other firms, but it's clear the transition was difficult for many others. And, of course, the profession has been rife with speculation over which firm will be next to fall. Adding to the uncertainty is the continued pressure on the legal business. In a ruling last week, the Ontario Court of Appeal illustrat- ed that tension when it upheld a decision earlier this year chopping the legal fees of Borden Ladner Gervais LLP to $157,500 from the submitted $255,955 after a motion judge found they were excessive. In its ruling, the appeal court took aim at the billable hour. "A per- son requiring legal advice does not set out to buy time," wrote Justice Sarah Pepall in Bank of Nova Scotia v. Diemer. "Rather, the object of the exercise is to buy services. Moreover, there is something inherently troubling about a billing system that pits a lawyer's financial interest against that of its client and that has built-in incentives for inefficiency. The billable hour model has both of these undesirable features." On the bright side, the calamity many people were predicting ear- lier this year hasn't materialized, at least so far. That's not particularly surprising given revelations about what happened at Heenan Blaikie Mounties landing in lots of legal trouble t began 14 years ago as the sort of silly incident that can easily destroy the ca- reer of a good Mountie. RCMP Staff-Sgt. Walter Boogaard was a decorated veteran who had served with distinction as an RCMP peacekeeper in Africa and other trouble spots. Back in Canada, he dropped into a restaurant one day to check the menu after leaving his service revolver in an unlocked police car. While he was in the restaurant, he be- gan talking to a woman who would later testify he was negotiating with her for sex. Meanwhile, her friend, another wom- an, stole the Mountie's gun from his car. Toronto police later caught both women trying to trade the weapon for cocaine. Boogaard faced an RCMP investigation and a disciplinary hearing. The investiga- tors bought his story about the menu. But for a Mountie, losing your gun to thieves is about as bad as having your horse stolen. So he had to forfeit five days' pay. But he remained as determined as ever to make inspector. He twice passed an of- ficer training program and was on his way up the line or so he thought. The problem was the nasty gossip about the restaurant that kept following him. One hearing and appeal after another followed him everywhere he went until he was about to get a trans- fer to a promotion in Regina. That's when his file went to the RCMP commissioner, who said no to a promotion to in- spector for Boogaard. He later learned senior offi- cers had said there might have been more to the disciplinary matter but they lacked sup- porting evidence. That's when Boogaard de- cided to get himself a good lawyer, Paul Champ of Ottawa, and head- ed to the Federal Court. RCMP commissioner Bob Paulson had written to Champ that Boogaard didn't embody the core values of the force and so for the time being there would be no promotion for him. Paulson went further. He said Boogaard might want to ref lect upon whether he still belonged in the Mounties. The judge was furious. He accused Paulson of relying on "gossip" to smear Boogaard and deny him a promotion based on unproven allegations. "This is unacceptable," wrote Justice John O'Keefe. The commissioner had "exceeded his discretion," "cast asper- sions," and "inappropriately substituted his opi nion about the disciplinary case." The judge said Paulson had "to do as much as he can" to make sure Boogaard gets his promotion to inspector and the Mounties will have to pay his court costs. Talk about an RCMP com- missioner getting a drubbing in the courts. As fate would have it, the Conservative government has given Paulson a boost with Bill C-42, legislation providing sweeping powers to fire or demote Mounties, even a deputy commissioner, for "various rea- sons," including "economy and efficiency." Talk about unbridled power. Under the legislation, Mounties facing disciplinary issues no longer have a right to formal hearing. Talk about a commission- er getting super powers without constraint from the courts or Canadian laws. Last week, another embarrassing re- port came out, this time from federal in- tegrity commissioner Mario Dion. Dion, who becomes chairman of the Immigration and Refugee Board of Can- ada on Jan. 1, discovered that for the past two years, the Mounties have been f ly- ing their planes with too much weight. In some instances, they didn't even enter the weight of the fuel in the tank, as if the planes were f lying on electricity. It's against the law for airlines and pilots to enter false weights for their air- craft. There's no evidence, however, that RCMP superiors instructed anyone to falsify the logs. Dion wrote in his report that "mak- ing false entries" suggests "a deliberate deception or malfeasance on the part of the RCMP personnel." Luckily, there were no crashes be- cause of the extra weight. But that still didn't make it right. Even Mounties should obey the laws. The federal government's reaction to the report was simple. It filed an application in Federal Court to set aside Dion's report. As for the RCMP, the senior officers would dearly love to know the name of the whistleblower who tipped off the federal integrity commissioner. The law, how- ever, forbids Dion from revealing the identity. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. 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From Walmart law to alternative business structures, it's clear the discussions about the future of the profession will continue. So it seems 2015 is shaping up to be an- other significant year. And in the meantime, with the economy showing more substantive signs of im- provement and some evidence of tentative change in the profession, it looks like things will be a bit better next year as we continue to muddle along. — Glenn Kauth I T The Hill Richard Cleroux

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