Law Times

Law Times • January 30, 2012 NEWS PAGE 5 Continued from page 1 nevertheless emphasized the misconduct. "Sometimes, there is a mistaken impres- sion that if the society fails to prove knowl- edge, willful blindness or recklessness, there can be no professional misconduct," the appeal panel wrote in the majority deci- sion. "Th is is not so. . . . Hence, the fact that a licensee 'ought to have known' that he/she was participating or assisting in a mortgage fraud may fi gure prominently in a fi nding of professional misconduct, but not based on knowledge, willful blindness or recklessness." But Osborne Barnwell, who represented McSween in the case, says that interpreta- tion of professional misconduct raises im- portant concerns when it comes to lawyers like his client. "McSween was a familiar tale to us," says Barnwell. "He was a victim of circumstance, his race prevented him from getting the ex- perience he needed, and although he should have been more careful, he simply screwed up by placing his trust in the wrong people. He didn't have any experience because of what he faced, so he couldn't have known. . . . He was duped by Ms. French." According to Barnwell, McSween had ar- ticled for a local law fi rm several years before meeting French. His articling work included carrying bags and picking up laundry but didn't include any real estate experience, notes Barnwell, who argues that lack of experience ultimately led McSween to become a sole practitioner like many other black lawyers and, as a result, struggle in the profession. "Th e law society has never acknowl- edged the racism we face in trying to fi nd articling positions or other employment," says Barnwell. "Th at's why so many minor- ity lawyers are opening their own practices now. Racism is something no one wants to talk about because they're afraid of the pushback they'll get. Even as litigators, it's customary for us to not raise the race is- sue because we're afraid we may suff er that pushback. Even in the post-Obama era, it's still a topic we don't discuss and there's al- ways this clash of knowing what we should do and actually doing it. Th at's why this decision is so powerful. It airs those issues and looks at the elephant in the room." But fellow lawyer Selwyn Pieters says that while the appeal decision tackles those issues head on, it may not have a widespread impact until it reaches the courts. "It's a step in the right direction," says Pieters. "But it's an appeal decision by the law society, so I don't think it will have much value on a widespread basis. What would be more interesting to see is how the courts would handle these issues. I think that would add a lot of value." According to Pieters, there have been several cases involving similar issues to McSween's. "Th ere are quite a few cases where minority lawyers have been duped by someone in their offi ce because they didn't have the experience to prepare them because of their race. McSween certainly isn't the fi rst case." A look at law society disciplinary deci- sions from last year shows at least four alle- gations of professional misconduct involv- ing similar issues against black lawyers. At the same time, a Canadian Bar Association review of racism in the legal profession in 1999 indicated that law graduates from minority groups had fewer and less mean- ingful articling opportunities compared to others in the profession. According to Barnwell, those issues will remain a concern until the profession does something. "What do you do as a commu- nity?" he asks. "You don't want to be a pari- ah because of your black skin but you don't want to sacrifi ce your profession. Th ere are so many stories like this out there and no one really has an idea of what we go through. It's an insurmountable hill and we're constantly climbing it. . . . It feels like we'll never get to the top." LT Court declines to dismiss negligence case for delay Continued from page 1 process of doing that, and at least in London, we hope to have a joint meeting between the bench and the bar to talk about those is- sues soon." Until then, according to Mur- ray, the courthouse in London will continue to ignore the rule. "Th ere's been discussions about how to move forward, but for right now they're shutting down the systems, so to speak, until it's decided what that may be." In his view, that's not neces- sarily a bad thing. "Th e rule has become more of an administra- tive problem here and it's actu- ally quite a pain," he says. "It just squanders time and resources and adds more red tape to the system when we have to con- stantly look for ways to take these steps that the rule speaks of but never really defi nes. I like to re- fer to it as the law of unintended consequences. I'm sure it was in- tended to clean out the cases that are truly abandoned but it's had other unintended results." Murray notes those conse- quences could include the court throwing actions out despite the fact that they remain active litiga- tion fi les. "Th ings could be going along fi ne and then, because the court has no way of knowing when cer- tain steps are taken, everything could be thrown out even though you've been working in media- tion, for example. It will depend on who's in charge as well. Wind- sor and Ottawa operate under a case management system, for example, which can help prevent that from happening, but it really raises a lot of questions here in the meantime." Still, Colin Stevenson, chair- man of the Ontario Bar Asso- ciation's civil litigation section, says that in Toronto, at least, the same measures are unlikely. "Th e rule has existed since 2009 and several organizations sent out notices about the changes," he says. "When the deadline fi nally came, it shouldn't have been a surprise, although it could still Untitled-2 1 www.lawtimesnews.com 12-01-19 9:23 AM pose a problem if a registrar chooses not to implement it. Th e rule on its face doesn't technically require the registrar to do any- thing. At this point, all the cases would have been deemed to be dismissed despite whether or not the registrar did anything, al- though lawyers could bring mo- tions to try to prevent the actions from being thrown out." While Stevenson doesn't think there was "a huge problem" with Rule 48 among Ontario's le- gal community, he says he under- stands the concerns of personal injury lawyers. "Th ere was a de- bate about it among the personal injury bar. It's understandable be- cause those types of cases have a tendency to drag on, so it's easy to get caught within the rule. But I do think there was enough time to prepare overall." But Colin Chant, an associate at Moodie Mair Walker in To- ronto, says being caught off guard by the rule can be quite jarring if lawyers aren't prepared. "I think the main thing people will be dealing with is the fact that there needs to be an obvious clarifi cation of the rule in terms of what a step is," says Chant. "I'm hoping it will be decided soon because it seems quite a few people, even directly within the justice system, have been leſt wondering." Master Ronald Dash touched on the issue briefl y last Monday, in fact, when writing in Koepcke v. Webster that plaintiff s could take several steps when looking to pro- tect their actions from dismissal. "Th e explanation for the delay must be such as to justify con- tinuance of the action or put an- other way to satisfy the court that the action should be permitted to proceed. Th is 'requires, among other things, a determination re- garding the plaintiff 's intention to prosecute the action through- out the period since the com- mencement of the action,'" wrote Dash, quoting from Oberding v. Sun Life Financial last year. Dash made the comments during a contested status hear- ing last week at which Toronto litigator Jeff rey Radnoff , who represented Marc Koepcke in the case, was required under Rule 48 to show why the court shouldn't, on the basis of delay, dismiss an action for solicitor's negligence against another lawyer. Dash ultimately ruled the ac- tion could continue while allow- ing 14 days for counsel to decide whether the litigation should proceed. Within 21 days, Dash also ordered Radnoff and Ko- epcke to arrange a case confer- ence with him as well. Ultimately, Dash determined the action must be set down for trial or terminated by April 30, 2012. If that doesn't happen, the court will dismiss it under the rule. "No steps whatsoever were taken in the action for over two years between the close of plead- ings and issuance of the status notice," wrote Dash. "Th e plaintiff s' explanation was that the action was commenced as a precautionary action and would proceed only if the second underlying action were dismissed as a result of the defendant's negli- gence in taking no steps to pros- ecute the fi rst underlying action. "Until then it was uncertain if the plaintiff s had suff ered damag- es because of the defendant's neg- ligence and as a result the plain- tiff s held this action in abeyance. While I found this to be an accept- able explanation for the delay in taking steps in the litigation such as productions and discovery, I found that the plaintiff s failed to provide an acceptable explanation for no taking no steps whatsoever, such as moving for a stay of pro- ceedings or advising the defendant of their intentions and seeking his consent." LT To advertise in an upcoming issue, contact our sales team: Karen Lorimer 416-649-9411 karen.lorimer@thomsonreuters.com Expand 1-8 - 3X.indd 1 Kimberlee Pascoe 416-649-8875 kimberlee.pascoe@thomsonreuters.com 1/26/12 5:26 PM LSUC decision 'a step in the right direction'

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