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PAGE 4 NEWS February 14, 2011 • Law Times Case handled by Nova Scotia prosecutor Continued from page 1 who was described in court as a small child. Police ordered Rae out of the vehicle, but she refused. She had to be forcibly removed and was verbally "belligerent" to the officer. She had to be re- strained. Police, who took Rae to the Napanee OPP station, ad- ministered a breathalyzer that recorded her alcohol readings. She apologized to police for be- ing abusive upon her release. Jennifer MacLellan, a Crown attorney from Nova Scotia, noted she came to prosecute the case to ensure Rae didn't receive any special treatment. Justice Geoffrey Griffin of the Ontario Court of Justice mused that if Rae had injured anyone, she would likely have gone to the penitentiary. "One would have thought she would have cared about her child," said Griffin. Rae declined to take the op- portunity to address the court. The lawyer of more than 20 years is now trying to get back into the courtroom for a differ- ent reason. She wants to keep her job. Oshawa, Ont., lawyer Ber- nie O'Brien, who represented Rae, said outside the court that her employment remains in question. He tells Law Times that nothing has changed since then and that the matter is in the hands of the Ministry of the Attorney General. walked out with her following the court proceedings, he at one point tried to protect her by blocking a photographer's view with his briefcase. He declined to comment when reached last week. But in a letter he wrote to the court, he offered a glimpse into Rae's state of mind throughout the ordeal. "I know that she is well aware that she made a mistake," in the 2008 death of Michelle Barnoski in Warkworth, Ont. That conviction came just a few days before her own arrest. Rae's father had also passed away after a long illness in May 2010. "She has taken steps to address these stresses," said Thompson. "She has sought and received professional assistance." O'Brien said Rae hasn't The decisions in this case were made by the independent prosecutor. A joint position on sentencing was presented to the judge. As in all cases, it is for the judge to accept or reject the submission. "Rae is currently on leave but remains an employee of the ministry," ministry spokes- man Brendan Crawley said in an e-mail. "As human resources matters are confidential, I can- not comment further." Rae, who went on medical leave after her arrest, appears to have the support of her boss, Crown attorney David Thomp- son. He was in the courtroom when Rae pleaded guilty. As he he wrote. "Nancy indicated a desire, early on, to accept re- sponsibility for her wrongdo- ing by entering a guilty plea at a very early stage of these pro- ceedings." Thompson noted Rae was dealing with personal and pro- fessional issues. She had success- fully prosecuted a "difficult" ho- micide investigation in the fall against Marc Vickers, who was convicted of first-degree murder drank since her arrest. The help she has been receiving is through counselling and at- tending Alcoholics Anony- mous meetings. O'Brien described her men- tal state at the time as a perfect storm of stress. "She's had a tough go, a very tough go," he said outside court. "She's owned up to the responsibility." Defence lawyers in the Nor- thumberland area say Rae's punishment was typical of similar cases but, knowing her personally, they didn't want to comment on the record. Ken Byers, a lawyer in St. Catharines, Ont., says that without knowing the details of Rae's case, the facts always determine the sentence. "The more severe the facts, the more severe the penalty," he said. Crawley, meanwhile, de- fended the outcome of the case in his e-mail. "The deci- sions in this case were made by the independent prosecutor. A joint position on sentencing was presented to the judge. As in all cases, it is for the judge to accept or reject the submis- sion." Crawley noted it's common for an independent prosecutor to handle cases like Rae's. "This is done to ensure independence and avoid any real or perceived conflict." Rae had no previous crimi- nal record. She had been charged with careless driving, a Highway Traffic Act offence, about a month earlier. LT Rule used in 60 per cent of B.C. civil cases Continued from page 1 of a deponent, and draw "any reasonable inference from the evidence" in deciding whether or not there's any genuine issue requiring a trial. According to van Kessel, the new powers have been described as a "revolutionary change," al- though some judges have adopted a more conservative approach and there's debate over whether they can make findings of fact. In a decision released just weeks after the new Rules took ef- fect, then-Superior Court Justice Andromache Karakatsanis laid down the marker on the issue as she granted summary judgment to the defendants in Cuthbert v. TD Canada Trust. She has since moved to the Court of Appeal. "It is not the role of the mo- tions judge to make findings of fact for the purpose of deciding the action on the basis of the evidence presented on a motion for summary judgment," she wrote in a decision released on Feb. 4, 2010. Superior Court Justice Sarah Pepall leads the opposing camp with her decision in Canadian Subscribe to Law Times Why pay extra for your legal news? Cutting-edge legal affairs, news and commentary for just 37¢ a day! Make the time for Law Times and keep up with all the developments in Ontario's legal scene. Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE 1-800-265-8381 www.mckellar.com www.mckellar.com F 'Shock and disappointment' BY ROBERT TODD Law Times dicial Council's decision to call for his ouster, saying he was compelled to resign due to his pending retire- ment, despite finding aspects of the council's report "troublesome." Cosgrove tells Law Times in an interview that once the CJC issued its recommendation to the justice minister, "My options were pretty narrow." While he believes he could have appealed an earlier committee report at ormer Ontario Superior Court justice Paul Cosgrove has spo- ken out on the Canadian Ju- earlier Court, he says a decision ment took hold in D month after the CJC Cosgrove port stating that h likely before his mandatory retire- ment took hold in December. resigned decision was un- at earlier this 1990s murder trial led to the conclusion that he "failed in the execution of the duties of his judi- cial office and that public confidence in his abil- ity to discharge those duties in future has been irrevocably lost." The decision made him only the second federal judge to meet such a fate. But the former judge says parts of the CJC's CJC issued a final re- his actions in a late- Cosgrove says 'life goes on' after the bench they were given little weight, according people in public office, and to the decision." CJC's determination public confidence was decision. He suggests unclear what evidence Cosgrove's final c determination that the issue of was central to its emains criticism is the of make such a determination. inquiry the Federal Law Times the senior regional judges in Ottawa since I've been here for the last 24 years, all wrote very positive recommendations, and they also were aware of the trial," says Cosgrove. "So to say that these letters, the people had final report could have been challenged. The council did not use a set of 32 letters of given rise for us to challenge," he says. "The problem with that is, of course I'm retired — manda- tory retirement in December of this year. And the process, for ex- ample, dealing with the constitu- tional issue, took three years." He says he did not want to "So, all of those issues may have suggests that it remains evidence is required to mination Financial Matters with 20,000 pages of evidence likely put forth. The 74-year-old former judge, who will gamble and let the matter play out before Parliament, where an un- precedented joint resolution would have been required to finalize his ouster. Doing so may have proved cumbersome, suggests Cosgrove, no knowledge of what was going on was not accurate." Cosgrove also suggests the council should support written by judges and retired judges, law- yers, and members of the public when coming to its decision saying theywere irrelevant, he notes. have used the letters from community mem- bers when considering whether he had lost the public's confidence. "It would seem to me that it's logical to test what the public's demeanour is; you ask people collect an annual pension of about $170,000, says that before the decision he was reason- ably confident that the council would not call for his dismissal. Independent counsel Earl Cherniak, a partner at Lerners LLP, had previ- ously told the council such a stern punishment was not necessary. "It was shock and disappointment," Cos- di di i 9 Focus On ADR/ Mediation Inside This Issue 3 Fight Over Fees 6 Quote of the week grove says of his reaction to the final decision. He says he has been dealing with the fall- b i i d "It is now incumbent on sports federations in selection disputes to show they had the proper criteria set up and that it was properly applied . . . The onus is now on the organiza- tion not the athlete. It wasn't quite as clear a few years ago." Premier Life Insurance Co. v. Sears Canada Inc. on Sept. 17, 2010. "Implicit in these powers is the ability to make a finding of fact," she wrote. "If a mo- tions judge using these powers can safely make a determination without the need for a trial, he or she is authorized to do so." Superior Court Justice Caro- lyn Horkins, who also spoke at the event, left no doubt about which camp she falls into. "I believe fact-finding is the right way to go," she said. "You're only drawing inferences for one reason, and that's to find facts. It's clearly inferred in that rule that we should find facts. If we go back to no fact-finding, then why did we have this rule change at all?" Horkins, who sits in Toronto, said she believes most judges she speaks to are leaning in that di- rection, especially at the Superi- or Court in Brampton. "It's not a question of can we find facts. That shouldn't be the debate. The debate should be about whether it was appropriate to find facts and whether this was the right case to find facts." On a practical level, the two ❑ Send me 1 year of Law Times for only $165.00 (plus applicable taxes) Name: __________________________________________________________________________ Company: _______________________________________________________________________ Address: ________________________________________________________________________ City: ____________________________ Prov: _______________ Postal Code: __________________ Tel: ( ) _______________________ Fax: ( ) ______________________ Email: ____________________________________________________________________________ ❑ Payment enclosed ❑ Charge my: ❑ Visa ❑ Mastercard ❑ American Express Card #: __________________________________ Expiry Date: ___ / ___ (mm/yy) Signature (required): ________________________________________________ Date: ________________ 240 Edward St. Aurora, ON. L4G 3S9 Tel: (905) 727-0077 Fax: (905) 841-4357 Mail or fax this form to Law Times LT Sub_Feb14_11.indd 1 www.lawtimesnews.com 2/10/11 8:56:06 AM streams of thought are creating a headache for lawyers, accord- ing to van Kessel. "The role of a lawyer is to predict outcomes for clients. When you've got com- peting lines of authority, that's a pretty difficult job to do. We need, very quickly, definitive res- olutions from the Ontario Court of Appeal so we don't continue to push these two lines along." According to Horkins, superior courts in Toronto and Newmar- ket, Ont., have seen a marked in- crease in the number of summary judgment motions. However, she said counsel are treating them like traditional Rule 20 motions and failing to take advantage of the new mini-trial provisions. In his report for the Civil Justice Reform project, former associate chief jus- tice Coulter Osborne envisioned an expedited mechanism for the resolution of straightforward yet disputed facts. The mini-trial al- lows motions judges to hear viva voce evidence from witnesses to aid them with their decision on a motion for summary judgment. In van Kessel's view, the chance to hear from deponents in person could be the extra nudge some judges need to grant motions for summary judgment. "There is, I sense on the part of some mem- bers of the bench, a reluctance to tackle credibility issues on the ba- sis of a paper record," he said. "I can sympathize with that view." Lawyers were slow to take ad- vantage of a similar rule in British Columbia but now use it in 60 per cent of civil cases in the prov- ince, van Kessel said. According to van Kessel, one of the problems with mini-trials revolves around scheduling. Judges hearing mini-trials must be the same ones deciding on motions for summary judgment, and it can be difficult to co-ordi- nate their availability with wit- nesses and counsel on short no- tice. "I'm not sure how all that is going to work," van Kessel said. "We have a tendency to build all the houses first, and then the road system to handle the traf- fic catches up. In the meantime, you have gridlock. And gridlock is not good in the justice system. Grand plans, as we've seen with this hairpin turn in the summa- ry judgment rule, need to have grand resources to implement, monitor, and evaluate the use- fulness of the change." LT www .lawtimesnews.com Includes a FREE digital edition!