Law Times

September 5, 2016

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Follow LAW TIMES on BY MICHAEL MCKIERNAN For Law Times A n Ottawa lawyer who acts for fellow licensees facing disci- plinary proceedings says the bar for awarding costs against the Law Society of Upper Canada should come down in order to force the regula- tor to think harder about which cases it prosecutes. Currently, claims for costs against the law society from vindicated lawyers can only succeed if they show the proceed- ings were "unwarranted" from the outset or that they became unwarranted at some point during the prosecution, but defence lawyer Christopher Moore says that high standard is unfair on lawyers who suc- cessfully fight off charges. "Just having a proceeding commenced against you ultimately becomes the pun- ishment. From a financial perspective, it's devastating, whether you win or lose," he says. "I think the law society should have a little more exposure on these costs. That word 'unwarranted' is a tough one to get around. I'm not saying we should open the door to a civil litigation-style loser- pays regime, but I think the wording could be changed to give hearing panels more room to award costs in certain cir- cumstances." Moore says the realistic prospect of a costs award would prompt the law society to enhance its investigation and vetting of cases, particularly weaker ones, at the proceedings authorization committee, a panel of benchers that decides which cases should go to a public hearing. "The PAC doesn't consider costs be- cause it's not really an issue. There's no real downside risk for the law society in proceeding, other than absorbing its own costs if they lose," Moore says. "How many times do you see criminal pros- ecutors not going forward with a case because they conclude there is no rea- sonable prospect of a conviction. But the law society doesn't seem to do that. They seem to proceed on everything, regard- less of how meritorious, and let the chips fall where they may." However, Sean Lawler, a Toronto law- yer whose practice includes professional disciplinary matters, says the law soci- ety's public interest mandate means costs should only be awarded against the regu- lator in extreme cases. "Law society prosecutions aren't like civil cases. They have to protect the pub- lic, and sometimes that will mean taking risks with prosecutions. Carefully con- sidered ones, but risks nonetheless," says Lawler, a partner at Shibley Righton LLP. Court reform goal for new OBA president BY ALEX ROBINSON Law Times F or David Sterns, pushing court reform will be a big part of his new role as pres- ident of the Ontario Bar Association. Sterns started serving as the OBA's new president in mid-August and has already started to focus on what he calls a renewed commit- ment to advocacy. During his term leading the organization, he says he hopes to make a noticeable differ- ence in how the OBA advocates for the profession. "I hope that I'll have moved the needle on court reform," he told Law Times. "I think there is a willingness among the judiciary and hopefully the government as well to push this forward." Digitizing the courts is at the top of his agenda. The provincial government re- cently expanded a pilot project that digitized e-filing in the Small Claims Court, but it fell short of introducing such a system for other courts. Sterns says that introducing e- filing for all courts is an easily at- tainable goal. "This is not the equivalent of putting a man on the moon," he says. "This is well within the tech- nology capabilities of today." Observers say the provincial government has been careful to introduce digitized systems to the courts and has done so on a piece- meal basis. That incrementalism stems from past experiences trying to roll out more comprehensive systems that have been abandoned such as the Court Information Manage- ment System or the Integrated Jus- tice Project, legal observers say. The OBA president says he knows such systems can work well as he was part of a paperless trial last year in front of Justice Arthur Gans that lasted two weeks. Sterns says introducing e-filing — or even completely paperless courts — would not be a compli- cated task nor would it take much BLOOD SETTLEMENT Judge highlights moral values in ruling P3 LEGAL AID CHALLENGE Future for lawyers depends on union, LAO P5 FOCUS ON Class Actions P8 See Make, page 4 See Law, page 4 PM #40762529 $5.00 • Vol. 27, No.27 September 5, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Sean Lawler says the law society's public interest mandate means costs should only be awarded against the regulator in extreme cases. Photo: Robin Kuniski Move would force regulator to be more choosy about discipline Make it easier to award costs against LSUC: lawyer & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM David Sterns says he'll be pushing for more digitization of the courts, such as e-filing. When you're working, we're working. End-To-End Legal Marketing Solutions. Visit Untitled-1 1 2016-08-30 8:33 AM

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