Law Times

Law Times • June 28, 2010 NEWS PAGE 5 Foster also facing litigation over estate matter Continued from page 1 In an application for rein- statement to the law society fi led on May 10, Foster repeats many of the allegations made in her civil action and claims to have medical reports from a psychiatrist and family doctor confi rming her fi tness to prac- tise law once again. At a hearing on June 18 to deal with a motion by Hughes to allow him to participate in the matter, Foster's duty coun- sel, Phil Downes, explained that she had abandoned the ap- plication for reinstatement after receiving advice that it wasn't necessary under the terms of her suspension. "She will go to the director of professional regulation and provide them with the infor- mation," said Downes, adding Foster would restart proceed- ings should the LSUC deem her unfi t to practise. But Hughes' counsel Helen Daley said her client would still need the in camera order varied so he can use the medical report and transcript of the hearing in his defence of the civil suit. "Th e order makes it impossi- ble to defend the civil suit, and I'm sure that was not the intent of the order," Daley said. "Even if he has access to the report, which he does, he can't use it." Daley said she could get around the concerns about privacy by holding the documents back un- til Foster can apply to have them sealed from the public record. "If she wishes, in the civil ac- tion she is perfectly able to ask the court to make an order akin to a publication ban," she said. But while panel chairman Patrick Furlong expressed doubts about whether he had jurisdiction to overturn the decision of a previous panel, after consideration he ordered the transcript and medical re- port released exclusively for use in the civil suit. Even if she can convince the director of professional regu- lation that she's once again fi t to practise, Foster is still fac- ing potential problems. In an endorsement dated May 6, Ontario Superior Court Justice Leonard Ricchetti expressed concerns about Foster's conduct as trustee of her sister's estate. He details a number of payments Foster made to her- self for expenses and legal ser- vices. Two payments for legal fees, totalling almost $60,000, took place after the law society had suspended her, but Foster claims they were for services performed in advance of the LSUC's action. She purchased a $30,000 Provision key to 'candid advice' Continued from page 1 expression is at play when "deni- al of access eff ectively precludes meaningful public discussion on matters of public interest," a recognition CLA president Paul Burstein calls a "very small step" in the right direction. "Th ere are numerous recent examples to show that when government is too easily em- powered to hide behind claims of privilege, it will exercise that power in a manner to protect its own rather than to promote public accountability for any wrongdoing," he says. Paul Schabas, who represent- ed a number of media organiza- tions that intervened in the case, says he was disappointed the court stopped short of a general right to access and over its fail- ure to explain what "meaningful public discussions on matters of public interest" might entail. "Th e reality is that although solicitor-client privilege is very strong, it's never absolute. Th ere are some particular concerns where it is government seeking to hide behind privilege because the government's lawyers are our lawyers. I'm not saying we don't have to be careful about privi- lege, but there's a reason why the legislatures didn't make privileges an absolute exemption." But Jamal says a move to make distinctions between types of privilege would risk a more general erosion of the concept. "Th ere may be questions about whether privilege is properly claimed in specifi c circumstances because not everything a govern- ment lawyer does is necessarily privileged, but that's a diff erent issue. Once the threshold is met, there should be a robust protec- tion that applies without dis- crimination as to whether the client is rich or poor, large or small, public or private." Pratte says any chinks in the armour of solicitor-client privilege could have a profound eff ect on the quality of decisions govern- ments make. In his view, public bodies should be able to consult lawyers without fear the advice could later become public. "Governments only make better decisions if they get to- tally candid advice from their lawyers, just like private clients. Any move which would ex- pose the legal advice they get to public scrutiny would inevi- tably lead to some sanitization and therefore a signifi cant risk of poorer decisions." Pratte cites the example of Governor General Michaëlle Jean taking constitutional ad- vice on a request to prorogue Parliament in late 2008. "You can disagree on the decision she made or agree [with it] but you want her to have totally candid conversations," he says. "Th e fact she is a public offi cer doesn't change that." LT Untitled-1 1 Enforcing Human Rights in Ontario The fundamentals you need to quickly navigate the new human rights system Enforcing Human Rights in Ontario is the first book to outline how the new human rights system works, written by lawyers renowned for their experience in the area. Written in a practical, how-to format, it provides: • the history of the reform • the wide-ranging changes from the old to the new system – including the changed roles of the Human Rights Commission and Human Rights Tribunal and an overview of the new Human Rights Legal Support Centre • the interaction between the Human Rights Tribunal and other administrative tribunals with concurrent jurisdiction Benefit from practical tools such as: • the ORDER your copy today Hardbound • 336 pp. • 2009 • $98 P/C 0301010000 ISBN 978-0-088804-485-3 and Human Rights Tribunal • a flow chart of the application process • a list of the Commission's guidelines and policies … and more. car with estate money and used it for more than a year after her removal as trustee despite "several court orders directing its sale," according to the en- dorsement. She also paid her husband $114,000 out of the $1-million estate. "Th e suspicions . . . that Ms. Foster used the estate monies as her own 'piggy bank' are real and may very well be justifi ed," Ricchetti wrote. He copied his endorsement to the LSUC, noting Foster "has apparently not kept the es- tate accounts as required" by the Law Society Act. Ricchetti also questioned whether she should have operated an estate trust account after the 2007 panel decision because the act prohib- its suspended members from handling money held in trust for another person. Th e matter now goes to trial to determine whether Foster's application to pass accounts disclosed all of the assets she received and whether the expenses and disbursements she made were proper. "Th is is not just a case of bad bookkeeping but rather sug- gests a deliberate breach of Ms. Foster's obligation to maintain and pass the estate accounts," Ricchetti wrote. Foster couldn't be reached for comment on the matters, while Hughes referred ques- tions to Daley, who didn't re- spond by press time. LT Been in Law Times? Want a record of it? Promote your law firm by ordering reprints of articles from the voice of the profession — Law Times! Reprints are great for: • Firm promotional material • Use on your web site • Training and education • Suitable for framing $175 - $225/reprint We provide a color PDF and unlimited reproduction rights. LAW TIMES For more information or to order reprints, please e-mail Gail Cohen at: gcohen@clbmedia.ca 8/20/09 1:11:45 PM For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0628 Cornish_Enforcing Human Rights (LT 1-4x3).indd 1 www.lawtimesnews.com Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. 6/23/10 11:19:43 AM Mary Cornish, Fay Faraday and Jo- Anne Pickel uman Rights Code Rules of Procedure H REPRINTS

• Cover
• 100 Years
• Doing The Math
• Focus On Municipal & Planning Law