Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. 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 Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Suing Ottawa not as bleak a prospect gift: a ruling that makes it easier to sue the feds. It's a significant decision, and to steal an analogy from the clever Justice Stephen Borins, the court has rejected a require- ment that put litigants into a real-life ver- sion of Charles Dickens' Bleak House. The ruling says lawsuits seeking fi- O nancial damages against Ottawa may be launched in the superior courts rather than the Federal Court. The Crown, relying on Grenier v. Can- ada, wanted to have the requirement up- held that potential litigants go first to the Federal Court within 30 days as a prelimi- nary step. It was argued the actions in this instance were attacks on decisions made by an administrative board or tribunal and thus couldn't start in the Superior Court. But, to quote Borins, the procedure n Christmas Eve, the Ontario Court of Appeal gave citizens and companies an important takes litigants back to the days of the bard's ninth novel, "where they had to go from court to court until they were finally able to obtain their remedy." He further said Grenier "was not correctly decided. In any event, it is not binding on this court." Said Borins: "Moreover, if generally accepted, Grenier's insistence that actions in provincial superior courts against the Crown are precluded without a prior ap- plication for judicial review would have far-reaching implications with respect to principles of Crown liability. In particular, the Crown's position as based on Grenier, would require split or multiple proceed- ings in different forums, waste scarce ju- dicial resources, impose huge additional costs on plaintiffs, and subject every tort and contract claim against the Crown to a draconian 30-day limitation period." The ruling arises from a consolidated hearing involving four unrelated lawsuits: one by high-profile bank robber Micky McArthur, and three by companies. Each appeal raised the same issue, whether the jurisdiction over each plaintiff's claim lies in the Superior Court or in the Fed- eral Court. In each case the claims were launched in the Superior Court and were collectively for damages for false impris- onment, breach of Charter rights, breach of contract, tort, and misfeasance in pub- lic office. "This is a very significant ruling," Pat- rick Monahan, who acted for one of the companies Telezone Inc., told the Nation- al Post. Monahan, who is also the dean of Osgoode Hall Law School, added that it removes barriers for "Canadians who try to hold the government to account." The decision makes it easier for federal inmates to sue. "It's a real Christmas pres- ent for civil lawyers and speeds the pro- cess up," Cobourg lawyer John Hill told Y mediators'" failed our Dec. 8, 2008 article titled "It's obvious: wom- en are 'more effective to portray the true context of the evening accurately. Your article created the misperception that the pan- ellists believed that a mediator's gender had an impact on his or her effectiveness as a mediator. Nothing could be further from the truth. The Nov. 6 debate was part of the OBA alternative dis- pute resolution section's an- nual "Great Debate" series. This year's resolution was, "Be it re- solved that women make more effective mediators." The topic was chosen to provoke discus- sion about stereotypes and the roles that people often are ex- pected to play. This debate fol- lowed a traditional model in which the panellists were asked by the organizers to argue one side of the issue. The panellists advanced the positions that they were asked to take and conducted the debate delib- erately in an entertaining and amusing fashion to prove the point that neither gender can claim superiority in the field of media- tion. Misleading article Letters in to the Editor Let us be clear. Neither the OBA, the program organizers, nor the panellists believe that men or women, by virtue of their sex, are better mediators. The audi- ence that evening understood this clearly, and enjoyed the program for what it was — an entertaining and provocative de- bate. We have made the recording of the session available on the ADR section of the OBA web site (www.oba.org/adr) for any- one interested in understanding the context and discussion that took place at the event. Jamie Trimble, president, Ontario Bar Association Bernard Morrow, chairman, alternative dispute resolution section, Ontario Bar Association The article in your edition of Dec.8, 2008, "It's obvious: women are 'more effective mediators'" was seriously mis- leading. The Ontario Bar Associa- tion, in its annual "Great De- bate," held a panel debate on whether women make more effective mediators. For your readers' edification, the out- come of the debate was over- whelmingly that neither sex can be said to be "more effec- tive" than the other. The four panellists were all leading mediators in the field and were given a side to argue. None of the panellists holds the view that either females or males, on a blanket basis, are better than the other. www.lawtimesnews.com the Toronto Sun. "Under the old regime, inmates were required to exhaust all inter- nal remedies before they could file a claim. And that could take up to a year. "And if they didn't do it that way, it would get tossed out of court. Now they can sue immediately at Superior Court," added Hill. "This ruling provides equal access to justice to everyone from ordinary citi- zens to ultra-respectable multi-million- dollar companies and federal inmates," John Ryder-Burbidge, who represented McArthur, told the Sun. "It's justice for one and all." It wouldn't be a great shock to see this decision appealed. But, if so, hopefully the Supreme Court will agree with our appeal court and ensure we all have an easier time of keeping Ottawa accountable. — Gretchen Drummie January 12, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klor- imer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905-713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. E v er y one the room understood that the purpose of the debate was to stimulate dis- cussion and interest on the topic. The eve- ning was very humor- ous and light-hearted. I com- mend Leslie Macleod and our able opponents for getting the issues on the table in a very clear and direct manner. The article created the im- pression that the statements made by the participants were their honestly held beliefs. They clearly were not. None of us was asked for our personal views on the topic nor were we interviewed by the Law Times writer as to our positions. A disservice has been done to me, Ms. Macleod, the OBA, and every other person who was in attendance that evening and/or read the article. Cliff Hendler Dispute Resolution Services LP I write about a piece authored by Glenn Kauth in the Dec. 8, 2008 issue of Law Times that pur- ports to be a report of an OBA, ADR section debate. Although I was not at the debate, I participat- ed in a similar format debate some months ago. This is a fun, largely tongue-in-cheek evening in which the debaters are encouraged to press their assigned role to the ex- treme. The positions advanced in the debate in no way reflect the thinking or point of view of any of the debaters. It is a fun evening in which senior members of the ADR community tackle some- what contentious issues, to the delight of an audience that votes to determine a winner at the end of the debate. Leslie Macleod is a senior member of the ADR communi- ty, and a person held in the high- est regard by her ADR peers, her clients, and indeed members of the bar and judiciary. The article and the front page 'Quote of the Week' were misleading. D. Paul Emond

• Cover
• M&As Alive
• Union Fines
• Focus On Insurance Law