Law Times

Page 2 May 25, 2015 • Law Times www.lawtimesnews.com NEWS New trial ordered over paralegal's donation to deputy judge By yamri Taddese Law Times A Small Claims Court deputy judge should have recused himself from a case in which a paralegal who had donated to his charity campaign was represent- ing one of the parties, a Divisional Court judge has found. Nine days before the trial in Robinson v. Lepage began, dep- uty judge Lyon Gilbert received an undisclosed amount as a donation from Phoenix Parale- gal & Advocacy Services for his cycling fundraiser in support of the Children's Hospital of East- ern Ontario. On Gilbert's web site, paralegal Tami Cogan, who represented the respondent, had left a comment after making a donation: "A great effort for a great cause. Enjoy the ride Mr. Gilbert!" The situation created a rea- sonable apprehension of bias, ac- cording to Justice Patrick Smith in his May 13 ruling in which he set aside Gilbert's decision and ordered a new trial in the breach of contract case. "Deputy Judge Gilbert should have recused him- self on his own volition under the circumstances," wrote Smith. Gilbertson Davis LLP partner Lee Akazaki says the case high- lights the conf lation of judicial and barrister roles that's "bound to happen" with deputy judges who are lawyers paid per diem for their work on the bench. "Deputy judge Robinson ought to have realized he was in a judicial office and there was a problem here, the problem that would have always been a prob- lem in having solicited donations from the public for a charitable cause," says Akazaki. "As a lawyer, on the other hand, because he wouldn't have had to resign from the law soci- ety to be a deputy judge, partici- pating in charitable events and fundraisers is part of being a lawyer in the community." It's surprising the issue hasn't arisen before, he adds. "Quite of- ten whenever you have reforms of institutions, especially when you're trying to combine people with different roles, this is bound to happen. It's actually surprising this has happened now instead of several years ago. Maybe it's only because somebody has raised it [now]. It makes us realize that there's a problem here." In his ruling, Smith said dep- uty judges of the Small Claims Court are subject to the same ethical standards as other mem- bers of the bench. "They hear a large volume of cases and discharge an extreme- ly important function within the legal system," he wrote. "Over the years, the monetary jurisdiction of the court has steadily increased in recognition of the important role the court plays. For a large portion of the public, the Small Claims Court is the court where litigation of their grievance takes place." But civil litigator Antonin Pribetic doesn't necessarily ac- cept that the deputy judge's lack of disclosure about the chari- table donation rises to a level of reasonable apprehension of bias, especially given the liberal approach the Supreme Court of Canada took in Yukon Franco- phone School Board, Education Area #23 v. Yukon (Attorney General) this month. In the Yukon case, the top court found a trial judge's mere involvement as governor of a philanthropic francophone community organization in Al- berta didn't, on its own, rise to a level of reasonable apprehension of bias against the government in a lawsuit over the diversion of funds from French-language education. "While I agree that consider- ation of the trial judge's current role as a governor of the organiza- tion was a valid part of the contex- tual bias inquiry in this case, I am not persuaded that his involve- ment with an organization whose functions are largely undefined on the evidence, can be said to rise to the level of a contributing factor such that the judge, as the Court of Appeal said, 'should not have sat on [this case],'" wrote Justice Rosalie Abella. Abella quoted the late Amer- ican jurist Benjamin Cardozo, who said judges don't stand on "chill and distant heights." "They should not and cannot be expected to leave their identities at the courtroom door," wrote Abella. The Canadian Judicial Coun- cil's ethical guideline says judges shouldn't solicit funds except from judicial colleagues or for appropriate judicial purposes. But Pribetic says it's unlikely that soliciting funds for a charitable cause falls under that restriction. Even if it does, it's likely only an issue when the charitable orga- nization is one of the parties, ac- cording to Pribetic. Based on the Supreme Court of Canada's approach, soliciting charitable funds for a children's hospital wouldn't, in and of itself, be sufficient for a finding of rea- sonable apprehension of bias, he adds. "Would a fair-minded per- son realistically and practically arrive at the same conclusion? I don't know if that's necessarily the case," says Pribetic, adding there must be further evidence of bias to support that conclusion. LT CANADIAN LAWYERS MOST INFLUENTIAL TOP THE OS OS OST ST ST OST MO TOP TOP TOP OP OP T THE THE THE TH THE THE T VOTE NOW Who do you think are the most influential law yers in Canada? Vote in Canadian Lawyer's TOP 25 MOST INFLUENTIAL LAWYERS IN CANADA poll. VOTING IS OPEN UNTIL JUNE 9 TH Visit WWW.CANADIANLAWYERMAG.COM for details Untitled-1 1 2015-05-20 2:38 PM September 8, 2015 | Four Seasons Hotel Toronto Emcee Gail J. Cohen, Editor in Chief, Canadian Lawyer/ Law Times 6:00 – Cocktail Reception 7:00 – Gala Dinner and Awards Presentation Seating is limited | Business Attire For Table Sales and Sponsorship inquiries, please contact CarswellMedia.Sales@thomsonreuters.com or call 416-649-8841. Platinum Sponsor Bronze Sponsor For further information please visit www.innovatio-awards.com Media Sponsor Untitled-2 1 2015-05-19 3:29 PM bid to force articling positions shot down By yamri Taddese Law Times M embers of the le- gal profession shot down a motion that proposed forc- ing law firms to take articling students at the Law Society of Upper Canada's annual general meeting on April 13. The articling motion "would solve nothing," said newly elect- ed Bencher Rocco Galati. "It's not focused and it doesn't really address the real problem." The motion, moved by lawyer Peter Waldmann, would have compelled members of Convo- cation to consider assigning arti- cling students to law firms on a random basis to ensure equal opportunity for all candidates. It also proposed requiring law firms with eight or more lawyers to provide articles to the students assigned to them. Representing The Advocates' Society, lawyer Brent Arnold said the idea was bad for law firms and even worse for students. "Our primary concern is the absolute loss of autonomy for stu- dents in this process," said Arnold. "It's bad enough what it does to firms, but the real harm is to the loss of autonomy for students going through this process." Arnold said many students go to law school with a clear idea of where they'd like to work upon graduation. Implementing the idea proposed in the motion would rob them of that choice, said Arnold, adding some students might feel "pigeonholed" in the area of law they landed in for their articles. Sotos LLP lawyer David Sterns, who's also the second vice presi- dent of the Ontario Bar Association, echoed Arnold's concerns. The motion "would deprive students of choice," he said. But newly elected Bencher Anne Vespry pointed out that articling "isn't a buyer's market." "Law students are already deprived of choice," she said. LT 'Law students are already deprived of choice,' says Anne Vespry.

• Cover