Law Times

May 2, 2016

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Page 2 May 2, 2016 • Law TiMes "Assuming, without deciding, that the Law Firm's refusal to pay the fees of outside appeal counsel amounted to a repudiation of the retainer agreement, in our view the motion judge did not apply the proper principle of law to her interpretation of that contract. A repudiatory breach of a contract does not, in itself, bring an end to a contract. Rather, it confers upon the innocent party, such as BDO, the right of election to treat the contract at an end," wrote Ontario Appeal Court Justice John Laskin on behalf of a unan- imous three-judge panel. "When BDO accepted the Law Firm's repudiation of the retainer agreement and told it to take no further steps in the proceeding, BDO cancelled the Law Firm's services within the meaning of the agreement's termination provision," Laskin added, referring to an e-mail from BDO's lawyer to Miller Canfield. That was a very ex- pensive e-mail, according to Sarah O'Connor, a lawyer with Toronto litigation boutique O'Connor Richardson PC. "It looks like one more ex- ample of appellate courts stick- ing to the fundamental tenets of contract law, and it's that one e-mail that they're hanging it all on," she says. Despite the favourable result for the law firm, she sees the deci- sion as a lesson to lawyers not to bite off more than they can chew in contingency fee matters. Miller Canfield's agreement committed the firm to repre- senting BDO's employees in "any and all proceedings" re- lated to the alleged wrongful prosecution. Myron Shulgan, a partner at Sutts Strosberg LLP in Windsor, acted for Miller Canfield on its appeal and said both he and his client were "pleased with the re- sult." In the wake of the appeal court decision, he said law firms would be "prudent" to look again at the provisions of their contingency agreements relat- ing to "the client's payment ob- ligation" on termination. BDO's counsel, James Thomson of Bersenas Jacobsen Chouest Thomson Blackburn LLP said in a statement that his client is considering an appeal to the Supreme Court of Canada due to the "wide ranging impli- cations" of the case for contin- gency fee agreements. "Parties rely on contingency fees for certainty because it's 'no win no fee'. The Court of Appeal decision removes that certainty by allowing one party to force the arrangement back to a regular fee structure," Thomson said. LT information in an ITO. From the perspective of the defence, a judge needs to bal- ance the right to access with legitimate concerns about fair trial rights, says Seth Weinstein, a partner at Greenspan Hum- phrey Lavine. "ITOs are now including incredibly detailed information. It may be the core of the Crown's case. Or it may be potentially inadmissible evi- dence that is going to be chal- lenged," says Weinstein. The Toronto defence lawyer represents Alexander Lisi, who is scheduled to be tried later this year on extortion charges stem- ming from alleged efforts in- volving the now notorious vid- eo of the late Rob Ford smoking crack cocaine. Justice Ian Nordheimer ruled in 2013 that a nearly- 500-page-long ITO that was part of a police investigation known as Project Traveller into the activities of Ford, Lisi and others would not be subject to a publication ban. The fact that details of a criminal case may attract pub- licity before trial and that it may be online is not sufficient to ban publication, said Nordheimer. "It is an argument that could be made nowadays regarding almost any case in which there has been any media attention at all," wrote Nordheimer in CBC v. The Queen. Lawyers for the Toronto po- lice officers are pointing to a decision this spring by Justice Ian MacDonnell in R v. Vice Media Canada Inc. and the risk of "stigmatization" to the defendants if certain details in the ITO are made public. MacDonnell upheld a pro- duction order against a reporter who had electronic commu- nications with "homegrown" terror suspect Farah Mohamed Shirdon, who is at large and be- lieved to be in Syria. A publication ban was im- posed on large portions of the ITO submitted by the RMCP for at least two years or until af- ter a criminal trial has ended, if Shirdon is ever apprehended. One of the cases that Mac- Donnell cited in his support of his ruling was a decision by Jus- tice Bruce Durno in the so-called Via Rail terror case. Durno or- dered ITOs to be unsealed, but he imposed publication bans on the information until after the trial and restricted how the pub- lic could access the documents. Nordheimer, in his Project Traveller decision, concluded that access without the right to publish was not a reasonable alternative under Dagenais/ Mentuck — a finding that Mac- Donnell said in Vice was wrong. "In my respectful view, the weight of authority is contrary to that conclusion," he wrote. The Superior Court judge added that he believes media unduly "fasten" on that notion that jurors will be able to follow instructions, as the Supreme Court stated in Dagenais. Iain MacKinnon, who rep- resents Vice, which is appealing MacDonnell's ruling, says con- cerns that jurors will not fulfil their duties, in part because details are available online, is overstated. "Jurors are not frail, little birds who are susceptible to any information outside the court- room. They are more than ca- pable of deciding cases on the evidence before them in court," says MacKinnon, a partner at Chitiz Pathak LLP in Toronto. He agrees with Fischer that often the focus of seeking to publish what is in the ITO is not about a potential defendant but to scrutinize state action. The various decisions on ITOs and publication bans are likely to eventually make their way to the appellate court level. At that point, Fischer believes the analysis of Nordheimer will win out. "In my view, his rulings are the most consistent with the case law of the Supreme Court," she says. LT NEWS Continued from page 1 Continued from page 1 BDO ordered to pay up Jurors not susceptible: lawyer Untitled-1 1 2016-04-26 3:09 PM

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