Law Times

Page 2 January 12, 2015 • Law Times www.lawtimesnews.com NEWS Subscribe today to the ultimate source for today's legal profession! To order your copy visit www.canadianlawyermag.com or call 416.609.3800 or 1.800.387.5164 Keep up-to-date and informed for only $99 a year. SUBSCRIBE TODAY AND RECEIVE: r JTTVFTDPOUBJOJOHVOCJBTFESFQPSUJOHBOEBOBMZTJT PG$BOBEBTMFHBMMBOETDBQF r '3&&FYDMVTJWFBDDFTTUPUIFCanadian LawyerEJHJUBM FEJUJPOBOEEJHJUBMFEJUJPOBSDIJWFT r '3&&XFFLMZFOFXTMFUUFSmCanadian Legal Newswire FEJUFECZUIFTBNFFEJUPSTUIBUDSFBUFCanadian Lawyer FREE Digital edition included! Untitled-1 1 2015-01-06 8:52 AM No distinction between barristers, solicitors: Sossin Foreign permits costly same language as the Supreme and Exchequer Court Act of 1875, when barristers were classified as lawyers who appeared in court. The Law Society Act in On- tario doesn't define barristers. Instead, it says members are in- dividuals licensed to practise as a barrister and solicitor. While the language may not have changed since the 19th cen- tury, the accepted meaning is that all members of the bar in good standing are barristers and solici- tors, says Adam Dodek, a profes- sor at the University of Ottawa Faculty of Law. The Judges Act "does not say that they must have been actively practising law," says Dodek. "Mr. Galati's suggestion reads a requirement in to the act that is not there. The same would go for suggesting that a solicitor who had never set foot in court was somehow ineligible for ap- pointment because they had not practised as a barrister," says Dodek, who notes that the bench in the province has benefited from a number of past appoint- ments of academics. "These include the likes of Louise Arbour, Louise Charron, Robert Sharpe, James MacPher- son, Katherine Swinton. The list goes on," he says. Lorne Sossin, dean of Osgoode Hall Law School at York Universi- ty, agrees with Dodek's interpreta- tion of the Judges Act. "There is no distinction in Ontario" between a barrister and solicitor, says Sossin. "There is no requirement that you actually practise." In addition, Sossin feels that even members of the bar who are in good standing and have never worked in the legal profession or at a law school are likely eligible as well. The appointment of Hu- scroft has also attracted scrutiny because he's part of the "origi- nalism" school of constitutional law that believes courts should defer to the accepted meaning of a statute at the time of enact- ment. The newest member of the Court of Appeal has edited a number of legal texts on constitu- tional law, including one with Ian Brodie, Prime Minister Stephen Harper's first chief of staff. Huscroft has also written a number of opinion pieces for newspapers that were critical of the courts for not showing suf- ficient deference to Parliament and of the judicial appointment process itself. "The system is secretive, elitist and profoundly undemocratic," he wrote in the Toronto Star in November 2005. The "fundamental problem," wrote Huscroft, was the power of the prime minister and the justice minister and lack of public scru- tiny of appointments to the top courts. Huscroft's appointment was among a slew of new Ontario judges named to the bench in mid-December. They included fellow Western law Prof. Brad- ley Miller to the Superior Court as well as notable Ontario law- yers such as Michal Fairburn, a former general counsel with the Ministry of the Attorney General and more recently a partner at Stockwoods LLP. The appoint- ments filled a long list of vacan- cies in Ontario that had sparked concern among the bench and the bar about the need to have a full judicial complement. LT Chang, a lawyer qualified to practise law in California who spends $3,000 each year on his equivalent insurance in addition to his LawPRO premiums, says the only people feeling any heat from the regulator are permit holders nearing their annual re- newal dates. "Instead, the law society spends their time chasing down and threatening us that we'll be prohibited from giving advice on foreign law if we don't renew on time," says Chang. "We're not the ones they need to worry about. I know one colleague who got a call from them and they said, 'Well, you wouldn't drive without a driver's licence, would you?' I think my response would be that if the police never gave out tickets for driving without a licence, I might just drive without one." Negar Achtari, an Ottawa-based Canadian and U.S. immigration lawyer who's a member of the bar in both Ontario and New York, says that as a sole practitioner, the permit represents a significant drain on her time and finances. "I have a hard time understanding what I am getting for the amount I pay. It creates a lot of unnecessary headaches. If you're go- ing to force me to go through all these administrative hoops, then at least enforce the restriction," she says, adding she suspects the bylaw may represent an overstepping of the LSUC's jurisdiction. "My U.S. licence is governed by a U.S. body, and I'm answerable to them if someone was to file a complaint against me. . . . The Law Society of Upper Canada is not the one that gave me the licence in the first place, so they should not be the ones governing this." Chang had doubts about the bylaw when it first came about in 2007 but says he accepted the need to protect the public from the unauthorized practice of foreign laws in Ontario. However, he says he has become more and more disillusioned with the law society's lack of enforcement in the face of blatant violations. Chang says he knows of plenty of lawyers and paralegals in the immigration field who simply ignore the requirement for the permit either because of the expense or they don't have a licence in the for- eign jurisdiction. "If it's such a big deal, why aren't they doing more to protect the public?" he asks. "Those are the easy ones because they can discipline them without going to court. At least give them a warning to comply or be suspended." Chang says the law society may have more trouble chasing down non-LSUC members advertising foreign legal services but suggests it could launch an investigation with a simple Internet search for some common foreign legal matters. He says law society representatives have encouraged him to make complaints if he suspects certain firms or law- yers of violating the rules around the permit but always counters that the regulator is free to initiate its own investigation without a complaint. "The immigration bar is a very small one, and you don't really want to be known as the one who ratted out everyone else," says Chang. "They don't need me. They just need to spend two minutes Googling and then send some demand notices." Somerleigh says she frequently comes across clients whose previous representatives have offered them foreign legal services without holding permits. In U.S. immigration law, she says the most common matters are spousal sponsorships, H-1B visa applications, and U.S. entry waivers. Achtari says Canadian immigration lawyers also often give them- selves away on list serves by asking for help with foreign legal matters. "You get Ontario lawyers who come across U.S. immigration issues and just attempt to sort out the problem themselves," she says. In the absence of an enforcement drive, Achtari says a public in- formation campaign would help ordinary Ontarians understand that permit holders should be handling their foreign legal matters. "I'm always amazed at how much time and effort it takes a client to find someone like me who is qualified to deal with a U.S. immi- gration issue," she says. "They should be able to find out that information. Why not at least make a list of all the foreign legal consultants in Ontario?" LT Continued from page 1 'Most just don't bother getting the permit because they know the law society doesn't care,' says Henry Chang. Continued from page 1 By the numBers: judicial appointments in ontario In recent years, the federal government has faced criticism from some members of the legal community in Ontario and other provinces for the lack of diversity in judicial appointments. The critics say the appointments don't reflect the range of backgrounds of those who currently practise law. In light of the new judges named last month, Law Times has reviewed the 30 Ontario judicial appointments announced by Justice Minister Peter MacKay since he took on the role in July 2013. Below is a look at some of the characteristics of the appointments. They include only new appointments and not administrative promotions within the Superior Court or elevations to the Ontario Court of Appeal. 83: Percentage male judges among new appointments 30: Percentage of new judges called to the bar at least 30 years ago or more 27: Percentage of provincial or federal Crown attorneys among new appointments 2: Number of former provincial court judges elevated to the Superior Court 2: Number of law professors appointed to the Superior Court or the Court of Appeal 0: Number of female law professors appointed 0: Number of defence lawyers appointed

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