Law Times

LAW TIMES • JUNe 1, 2015 Page 5 www.lawtimesnews.com prosecution of a Toronto lawyer r ecently charged with perjury and obstruct justice by Peel Regional Police, according to a source. The case against the lawyer follows comments she allegedly made about a Peel police officer who was a witness in a drug matter she was acting in. The lawyer had pre- viously defended a client in a 2011 case that resulted in a finding that the same officer and others had provided false evidence designed to mislead the court. Peel police have noted the officer is facing a disciplinary proceeding by the force but won't specify the cause of the investigation. According to the ministry, the unit's primary responsibilities in- clude prosecution of police offi- cers charged by the Special Inves- tigations Unit in cases involving serious injury or death. "Gener- ally, this would not include the prosecution of police officers who have been charged by a local po- lice service in relation to a judicial finding or comment that an offi- cer has been deliberately untruth- ful under oath," said Crawley. Defence lawyer Heather Pringle says she highly doubts any officer has been charged criminally as a result of court testimony since the new minis- try policy took effect. The min- istry's lack of action "is a black eye on the administration of justice," says Pringle, a lawyer at Pringle & Bottomley in Toronto. "A message has been sent that police are above oversight." She notes that in R. v. Tang, a 2011 case in which she represented a person facing drug offences, Justice Paul Reinhardt referred to the testimony of the lead officer as "evasive and con- trived." The Toronto police officer has since received a promotion. "These are reluctant conclu- sions for judges to reach," says Pringle. Toronto lawyer Ayderus Alawi says he's disappointed with the ministry's response and the mes- sage it sends to the public when the court finds police officers to have lied without any apparent repercussions. "It is concerning. There is a need for accountability and transparency," says Alawi. The court stayed charges against a young man represent- ed by Alawi in R. v. Kang in 2013 because of excessive force by Toronto police. Superior Court Justice Nancy Spies also found an officer had fabricated a claim that he overheard a conversation between two suspects about a drug transaction. Alawi says neither Toronto po- lice nor the Crown contacted him after the court issued the findings. "There was no follow up, noth- ing," he says. A year later, another Superior Court judge found the same offi- cer had provided "deceptive testi- mony" in R. v. Pankaj Bedi. Peel Regional Police had ad- opted a protocol to review "nega- tive judicial comments" prior to the change in the ministry's poli- cies in 2012, says spokesman Staff Sgt. Dan Richardson. "We have charged officers as a result of this protocol; how- ever, for a variety of reasons, the hearings were conducted with- out formal findings," he adds. And while the province has provided few details, a Toronto police spokeswoman says the ministry referred nine cases to the force in 2013 and 2014. Two of the cases resulted in unit-level discipline with four found to be unsubstantiated. One offi- cer found to have lied in court is facing a related assault trial later this year. Another officer was charged with a Police Act offence that was withdrawn when the complainant couldn't be found. The name of another officer facing Police Act charges will be released when he makes his first tribunal appearance this month. 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Price(s) subject to change without notice and subject to applicable taxes. 00229RC-A49380 Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Lack of action 'a black eye' on administration of justice Continued from page 1 a ctions by shareholders in Canada and the United States alleging misrepresentation about the progress of the mine. None of the allegations have been proven in court. Joel Rochon of Rochon Genova says the latest decision provides plaintiff counsel and trial-level courts with fur- ther direction when it comes to the issue of which lawyers or firms should have carriage in a class action. The Barrick Gold case, he says, outlines the unique facts that drove the motion judge to de- cide in favour of the team led by his firm. "The divisional court has certainly provided a level of clarity in releasing the decision," says Rochon. Peter Jervis, senior counsel at Rochon Genova, says each carriage decision turns on its own facts and circumstances but notes the theme emphasized by the latest decision is that ultimately the court will consider which counsel team is best able to represent and advance the interests of the class. While lawyers with the other group have until June 4 to indicate if they will appeal the latest decision, My- ers says that in granting carriage to the Rochon Genova group, the Divisional Court didn't address the issues raised by the judge hearing the motion for leave to appeal in which he criticized Belobaba's findings. In granting leave to appeal, Nordheimer found Be- lobaba's "reasons reveal a fu ndamental disagreement with the basic principle" of previous case law. He also found a problem with Belobaba's de- termination that the court wasn't to assess a claim's likelihood of success on a carriage motion. The Divisional Court decision, says Myers, encourages compet- ing counsel to spend more time and money to present as much evidence as possible and doesn't provide the direction sought. "Predictability is a crucial element of our justice system and I think this decision introduces unpredictability in terms of who gets carriage of a class action," says Myers. That the appellate courts will give significant deference to the motions judge's discretion in the absence of a legal error provides some clarifica- tion, says Lawrence Thacker of Lenc- zner Slaght Royce Smith Griffin LLP. "Once the correct legal test is identified, there will be deference given to the application and the facts and the weighing of the evidence that establishes those facts," says Thacker. "It makes it clear simplicity or complexity in itself is not a deciding factor." Brian Radnoff, a partner at Lerners LLP, sees some clarification in the decision but says it leaves a lot of dis- cretion to the motion judge. In a situation such as this that involves very qualified counsel on both sides, the outcome is likely to be uncertain, he suggests. "These kinds of carriage battles are going to come up again and again," says Radnoff. "The bottom line is there's not going to be a lot of cer- tainty about who's going to win these motions." Perhaps one approach to stem the litigation, Radnoff suggests, is for more law firms to group together to repre- sent the same class and avoid taking the carriage motion to court. Dimitri Lascaris, leader of Siskinds LLP's securi- ties class actions group, sees f laws in the jurisprudence around class action carriage motions. He believes the courts are reluctant to engage in a vigorous examination and comparison of the competing groups. Siskinds is one of the four firms, along with Koskie Minsky, seeking carriage in this case. "They're just too quick, in my view, to put us in the same hopper," says Lascaris. Lascaris says the plaintiffs' bar for class actions in Cana- da is relatively small. He suggests carriage decisions should focus more on the areas of law in which the firms practise rather than giving equal weight to the various players. Hav- ing expertise in class actions procedure, he says, only repre- sents a limited part of the legal work involved. Knowledge of the relevant area of law can distinguish one firm from another, he adds, suggesting the Barrick Gold case requires counsel to have a background in securities law. One option for dealing with the issue would be the use of an arbitrator to determine which firm should have carriage of a class action, according to Lascaris. Using an arbitrator could lead to a quicker and less expensive resolution, says Lascaris, who also sees a potential ben- efit from a closed-door discussion before someone other than the judge who will ultimately manage the case. "We need to fundamentally reform the way we do car- riage motions in this country," says Lascaris. LT Lawyer suggests arbitration for carriage disputes Continued from page 1 'We need to fundamentally reform the way we do carriage motions in this country,' says Dimitri Lascaris.

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