Law Times

Law Times • OcTOber 5/12, 2009 FOCUS Few firms have groups Continued from page 9 them exclusively, the firm never consid- ered that route. "We had quite a few people who wanted to be in the group, which gave us consid- erable flexibility and also allowed for the kind of communal input that boosts the quality of work," Akbarali says. "Besides, managing an appeal practice on your own can kill you. At one point, I had three sets of transcripts come in within one week of each other." The group's marketing plan includes advertising, expansion of its web pres- ence, outreach presentations at regional centres, and developing individual rela- tionships with trial lawyers. At BLG, meanwhile, the appellate group has formally been around since 2000. "Trial and appellate counsel enjoy sepa- rate skills," says Foy, who heads the group. "Trials are about creating records in real time, the credibility of witnesses, and mak- ing sure everything relevant is before the court. Appeals are about interpreting re- cords in compressed time, about the credibil- ity of counsel, and about a selection process where you throw things away and let the appeal court rely on you to bring the most important matters to their attention." Advocacy writing skills are also at a higher premium on appeal where coun- sel face time limits on oral argument and intense questioning. BLG's group consists of 42 lawyers in its five offices across Canada. It con- centrates on disputes that are likely to proceed beyond one level of decision through appeal or review. Apart from maintaining an institu- tional practice from clients like insur- ance companies that send all their cases to the firm, the group collaborates with referring trial counsel at BLG on strategic decisions affecting the appeal record and provides opinions on the viability of ap- peals and judicial reviews. So far, however, Lerners and BLG are the exception rather than the rule in set- ting up formal practice groups. As a re- sult, it's unclear how the growing impor- tance of appellate advocacy will manifest itself in the organization and hierarchy of Canada's law firms. LT Court upholds fines Continued from page 10 "It seems obvious that the appellants, especially Bruce Bergez, have no intention of complying with the statute or the [court's] order," Watt noted. "This is not a case in which the conduct of the contemnors arose from some mistake or misunder- standing about the application of the underlying order." The penalty "justifiably emphasized" deterrence and "denunciation of the appel- lants' intransigent and unremitting refusal" to obey the law. "We cannot suffer the sacrifice of the rule of law to the lure of lucre," Watt concluded. In January, a panel heard the appeal from Fedak's order. Like the previous panel, the court dismissed SHS Optical's appeal. SHS Optical argued the daily fine of $50,000 and the total penalty of $16 mil- lion were excessive and suggested a fine of $25,000 instead. The court saw no merit in that argument. "Obviously, the fine imposed is a very significant one," the court wrote. "However, the brazen nature of the appellants' contempt, its lengthy and ongoing nature, and the risk to the public health and safety posed by the appellants' conduct demanded a substantial fine that would act as a strong disincentive to the continuation of this kind of conduct." As the court saw it, the appellants were fully aware of the financial risk their con- tempt would attract, but it did not deter them. "The $1-million fine imposed by Crane J. was similarly ineffective," the court wrote. "The appellants are business people. One can only assume that they judged the finan- cial risk associated with non-compliance and deemed that risk worth the potential financial gain occasioned by continued operation in violation of the court order." To be sure, even a $16-million fine falls significantly short of life imprisonment. But while SHS Optical's lawyers at Gowlings have declined to comment on the case, counsel for the other side say the message is clear. "The courts may have paid lip service to the need to obey civil orders in the past," Moher says. "But they're definitely putting their foot down now and taking it quite seriously." LT WRITS OF EXECUTION OWL® Report Requested By: MB, Reference Number: DOE Date of Search: March 01, 2009 Total Cost(including GST): $52.45 Name Searched: DOE, JOHN The following writs of execution were retrieved: ENFORCEMENT OFFICE: WRIT NUMBER: 06-0002045 06-0003692 ENFORCEMENT OFFICE: WRIT NUMBER: 03-0000638 ENFORCEMENT OFFICE: WRIT NUMBER: 95-0003348 ENFORCEMENT OFFICE: WRIT NUMBER: 05-0000399 92-0000155 ENFORCEMENT OFFICE: WRIT NUMBER: 95-0000346 95-0000632 96-0000200 ENFORCEMENT OFFICE: GODERICH PARRY SOUND LINDSAY KITCHENER WELLAND NEWMARKET PAGE 11 Gardiner Roberts LLP welcomes Carol Hitchman, Paula Bremner and Esther Jeon who will be continuing their intellectual property practices with our firm. Carol Hitchman, Partner 416 865 8259 chitchman@gardiner-roberts.com Paula Bremner, Partner 416 865 4029 pbremner@gardiner-roberts.com Esther Jeon, Associate 416 865 6676 ejeon@gardiner-roberts.com GARDINER ROBERTS LLP 40 King Street West, Suite 3100, Toronto, Ontario M5H 3Y2 www.gardiner-roberts.com Gardiner_LT_Oct5/12_09.indd 1 9/29/09 3:24:47 PM www.lawtimesnews.com Teranet_LT_May11/18_09.indd 2 5/6/09 2:44:48 PM Go to www.bar-ex.com or call 1-877-462-2739. 3868.BX LawTimes 04/09

• Cover
• New Mentoring Program
• Withdrawal
• Focus On Litigation