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Law Times • march 22, 2010 NEWS Court ruled in Temagami band's favour Continued from page 1 First Nation General Partner- ship, which distributes pro- ceeds from Casino Rama to Ontario bands. It's unclear whether Borden, effectively caught in the mid- dle of the governance dispute, communicated its intention to issue the garnishment order. According to Magisano, Bor- den obtained the garnishment "on motion to the court (with- out notice to TFN)." Bell says he doesn't know whether Wendy Earle, the BLG lawyer who was repre- senting Borden's interests at the time, "spoke to someone at TFN before the garnish- ment issued." There was, however, consid- erable communication after the garnishment. The outcome was an application before Superior Court Justice Lois Roberts to determine whether the garnish- eed funds were exempt from attachment under s. 89(1) of the Indian Act. The section Ruling had 'adverse effect' on Neinstein, Greenspan says Continued from page 1 to events that allegedly took place between 1988 and 1998, according to the judgment. "The original panel, just in terms of discipline matters, was on another planet," Greenspan says of its ruling, which included an order that Neinstein be disbarred. The Divisional Court, while restoring the original finding, reduced the disbarment to a three-month suspension. "One would have to hope that in light of the judgment and the pas- sage of time and the enor- mous adverse effect that the publicity has had on Mr. Neinstein's career and his life, one would hope that the law society would be pretty circumspect before it chose to reprosecute," Greenspan says. The law society alleged that Neinstein had sexually harassed three women: C.T., a client; S.G., a secretary in his law office; and L.D., a family friend and client. The original panel rejected the claims by L.D. "This was a classic 'he said-she said' case," Doherty wrote. "The complainants testified about various acts of sexual harassment. The appellant denied those acts occurred. Other witnesses were called, and while their evi- dence was important, it was clearly secondary to the evidence of the main protagonists." C.T., who met Neinstein when he was act- ing for her brother, retained him in 1988 in a claim from an accident in which she was involved. She testified that from the outset, he seemed "overly friendly," made sexual comments, and touched her in inappropriate ways. She alleged she and Neinstein began a consensual sexual relationship in August 1990 that continued until mid-December of that year. C.T. said she ended the relationship that month but kept him as her lawyer until 1991, when she settled her accident claim. She claimed she came to feel ashamed of the relationship but didn't report him to the law society because Neinstein was still represent- ing her brother. She complained to the LSUC after Neinstein settled her brother's lawsuit in 1997. Nein- stein denied all of the allegations, in- cluding consensual sex, and testified she continued to retain him until 1994, when he settled her claim. He testified he did the best for her but said there were "significant prob- lems" with her claim. C.T. claimed she didn't know Neinstein was married, despite testimony from his wife and secretary that there were numerous pho- tos in his office of his entire family. 'The original panel, just in terms of discipline matters, was on another planet,' says Brian Greenspan. S.G., the second com- plainant, worked for Nein- stein's firm from Septem- ber 1990 until May 1991. She claimed he had made inappropriate comments and gestures toward her, often while working late at night, and that at one point he said he would require sexual favours in return for a raise. Neinstein denied those allegations. In another odd twist in the case, Steve Ellis, the for- mer Immigration and Refu- gee Board judge who is now on trial in Toronto for al- legedly extracting sexual fa- vours from a South Korean refugee claimant, was a law- yer at Neinstein's firm dur- ing the period S.G. claimed she was sexually harassed. S.G. testified she had mentioned some of Neinstein's alleged advances to Ellis, who, she claimed, described Neinstein as "an old perv." Ellis, who had been ap- pointed by the federal Liberal government to the refugee board by the time the law society panel heard the allegations against Neinstein, denied speaking to S.G. about Neinstein's conduct. Doherty said the hearing panel gave no ra- tionale or reasons for rejecting Neinstein's ver- sion of events rather than those of C.T. and S.G. and "effectively excluded a large body of evidence from its credibility analysis." "There is no analysis of his evidence or the evidence of his witnesses," Doherty wrote. "It can be fairly said that Mr. Neinstein, on a reading of the hearing panel's reasons, would have absolutely no idea what, if anything, the hearing panel made of his evidence and that LT Where do you turn for analysis on the effect of recent tax legislation on real estate transactions? Get the guidance you need to understand the impact of the General Anti-Avoidance Rule (GAAR), GST, and other developments in tax law with Taxation of Real Estate in Canada. This work provides a comprehensive transactional treatment of the income tax and GST implications of various real estate related activities. It examines the tax considerations in acquiring, developing, leasing and disposing of real estate. Written in clear, concise language by leading tax authorities, the work explores important tax-planning opportunities and potential pitfalls. Specialized topics are examined separately in individual chapters, including: International considerations ORDER # 9575996-64131 $326 1 volume looseleaf supplemented book Supplements invoiced separately 0-459-57599-6 1-2 supplements per year provides that the real and per- sonal property of a band is not subject to charge, seizure or at- tachment other than by an In- dian or a band as defined in the Indian Act. Last year, Roberts ruled in the band's favour, concluding that Borden couldn't garnish the funds that were sitting in a bank account on the Six Na- tions of the Grand River re- serve. She rejected arguments by BLG's Kate Menear and Alessandra Nosko that "debt" was not included in the mean- ing of "personal property" as used in the Indian Act. Instead, Roberts adopted the position taken by Magi- sano and David Outerbridge of Torys LLP, who represented the TAA. "For the purposes of the application of s. 89 of the In- dian Act in the circumstances of this case, the relevant fac- tors listed under s. 89 of the Indian Act are that the assets sought to be attached are real or personal property, that they belong to an Indian or a bank, and that they are located on a reserve," Roberts wrote. "There is no criterion concerning the source or nature of the funds to be exempted from seizure like, for example, funds gener- ated in the commercial main- stream." On consent, Roberts award- ed the TFN $27,000 in costs on a partial indemnity basis. Borden appealed, but the parties continued to negotiate and reached an interim settle- ment in November. Following mediation convened by Rob- erts, Borden abandoned its appeal. The parties are scheduled to finalize the settlement, which includes payment to Borden, next Wednesday. LT PAGE 3 Assess the effect of income tax provisions on real estate transactions TAXATION OF REAL ESTATE IN CANADA EDITOR-IN-CHIEF MICHAEL CADESKY, B.Sc., M.B.A., F.C.A., TEP AVAILABLE FOR 30 DAYS, RISK FREE Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. www.lawtimesnews.com ntitled-1 1 3/16/10 12:46:44 PM