Law Times

Law Times • sepTember 7, 2009 NEWS PAGE 5 There are still bright spots in Essex County Continued from page 1 "there has to be a joint working relationship where people that invest money in a business have the incentive to grow it with- out the prospect of growing it to the point where they feel they're beholden to a union." Porter, who is licensed to practise in Michigan and On- tario, says he started to worry when he experienced a slow- down in work a few months ago. But he says he has been able to weather the economic storm through a well-diversi- fi ed practice and an established list of referral relationships. "We seem to be able to ad- just," he says. Jerry Udell, a real estate practitioner at McTague Law Firm LLP, says the recession and auto industry collapse has "unequivocally" aff ected his law practice. "It really didn't hit home for me until I had a client who had a property in Toronto and they sold it, and they had a bidding war," says Udell. "I thought, whoa, isn't this unusual. Can you imagine that happening here — wouldn't that be nice. Because it doesn't." Dinham says Windsor's real estate market has been slow for some time. "Th ere's not a lot of building or development going on," he says. "Th at slows things down for the commercial lawyers." But his fi rm has benefi ted from work for the federal govern- ment on narcotics prosecutions. "Th at's an area of practice that is not aff ected that much by the economy. It continues to grow," he says. "We keep those lawyers quite busy. Th ey don't suff er from a slowdown. Th at helps our fi rm personally to balance things out." Peter Hrastovec practises labour and employment and commercial litigation in the city, and is a past president of the Windsor-Essex Regional Chamber of Commerce. He says the region is more diversi- fi ed than it appears. "Without question, one of the biggest employers is the University of Windsor, second- ed only by St. Clair College," he says. Hrastovec also points to distilleries as a strong point — with Hiram Walker a strong presence — along with the ag- ricultural and wine industries. Agricultural-based industries can benefi t from being in the area: "We have actually more sun days here than northern OSC 'extremely pleased' with decision Continued from page 1 Jeff Kehoe, director of en- forcement at IIROC, says Taub is crucial for all self-regulators. "It's part of an eff ective de- terrence message that a regis- trant simply can't walk away from alleged misconduct by resigning or being terminated," he says. "A component of eff ec- tive enforcement is the ability to discipline or to prosecute individuals once they have left the industry." Taub was a registered rep- resentative of the Investment Dealers Association of Canada from June 1988 until Septem- ber 2004, when he resigned from the IDA and the brokerage fi rm where he had worked. In October 2005, the IDA began disciplinary hearings against him involving four counts of conduct unbecoming. Th e association alleged that Taub "facilitated 'trading activ- ity that appeared to be or was consistent with market ma- nipulation or deception' and circumvented rules of the IDA and the U.S. Securities and Ex- change Commission by 'open- ing accounts and accepting orders from clients outside his jurisdiction of registration,'" according to the Court of Ap- peal decision. Taub also faced allegations of having "improperly disclosed and used confi dential client informa- tion and to have misled his mem- ber fi rm regarding involvement in accounts of certain individuals," the court said. But Taub sought a fi nding from the discipline tribunal that the association could not punish him because his status as a registered representative expired before the proceeding began. Th is, noted the Court of Appeal, despite having agreed upon registering with the IDA to be bound by its various poli- cies — including being subject to its jurisdiction for fi ve years after membership ends. Th e hearing panel denied Taub's order, a decision upheld on appeal to the Ontario Secu- rities Commission. Last year, the majority of a Divisional Court panel over- turned that ruling. Justices Helen Pierce and Charles Hackland said Ontario lacks a "clear statutory provision that permits self-regulated organi- zations to discipline former members." Specifi cally, the judges said s. 21.1(3) of the Securities Act "cannot be stretched to include the discipline of former mem- bers without doing violence to the meaning of the statute." Justice James Carnwath dis- sented. "Th e issue is whether the by- law extending Mr. Taub's capac- ity to be sanctioned following resignation carries out the pur- pose of the legislation, i.e., to protect investors from improper practices and to foster confi dence in capital markets," he said. Th e Court of Appeal agreed with Carnwath, deciding that the OSC's ruling on the matter was "reasonable and should be upheld." Th e court noted: "If the IDA is able to impose the same signifi - cant fi nes when disciplining for- mer members as it can when dis- ciplining members, and if those fi nes are legally collectable, then expulsion or removal of a person from membership in [a self-reg- ulated organization] would not be the ultimate or necessarily the only signifi cant disciplinary pen- alty that could be imposed on former members." It added, "Th is would make discipline proceedings against a former member as eff ective and relevant as proceedings against a current member. . . ." Th e Court of Appeal also as- serted that the OSC's decision should be considered "prec- edential." "Although the court reviews the decision on the reasonable- ness standard, the OSC has determined as a matter of law the correct interpretation of a provision of its home statute," said the ruling. Th e OSC declined an inter- view request on the decision, but issued a statement. "We're extremely pleased with the decision," said com- munications and public aff airs director Wendy Dey. "We are reviewing the decision in detail before commenting further." Taub is the third case this year in which IIROC's jurisdic- tion over former members has been upheld. Similar cases were addressed in Quebec and British Columbia. LT Premium Fold Back End Tab File Pocket Untitled-1 1 Exclusive • Strong tear-resistant Tyvek Material • Eyelet reinforcements for extra strength • End tab for labelling • Top tab in right-hand position • Notched tab allows easy retrieval California, from what I under- stand, and the climate is just beautiful," he says. While Dinham remains op- timistic about a recovery, he ac- knowledges there doesn't seem to be a historical comparison to the city's current economic struggle. He says employment is the big problem. "It's a little bit diff erent here in Windsor right now," he says. "Th ere seems to be more uncer- tainty as to whether the auto in- dustry, for example, is going to rebound the same way it has in the past. So whether it's going to rebound and be the same as it has in the past is hard to say. Hopefully it will be. Either that or Windsor's going to diversify to some extent and will have other businesses and other in- dustries to employ people." Despite the challenges for many lawyers, Dinham says few seem to have left the city for greener pastures. "But I have to admit I don't know some of the younger lawyers who may have gotten into practice in the last couple of years who may have decid- ed not to pursue it after they realize it's diffi cult to make a living," he says. 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 N Contains 30% recycled, 10% post consumer content. 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