Law Times

PAGE 4 Little guidance on who lawyers should make disclosure to NEWS Continued from page 1 public health officials include the fact that they know how to han- dle these matters properly and discreetly and that it wouldn't be necessary for them to reveal the source of their information. normally keep their clients' HIV status confidential. However, he says that if the lawyer thinks someone may be in danger, the public safety exception may come into play. He adds that early Elliott believes lawyers should intervention can prevent HIV from progressing. However, Elliott cautions that disclosure of a person's HIV status positive, they should be disclosing that to the court." The requirement for lawyers should be rare. "I would hope that lawyers wouldn't take from this case that every time a client is HIV THE TERRY FOX RUN FOR CANCER RESEARCH Inspired By A Dream Grounded In Tradition Volunteer-Driven NO ENTRY FEE NO MINIMUM PLEDGE Walk-Run-Wheel-Ride to keep client information confi- dential falls under Rule 2.03 of the Rules of Professional Conduct. However, under Rule 2.03(3), if lawyers believe "there is an im- minent risk to an identifiable per- son or group of death or serious bodily harm," they "may disclose, pursuant to judicial order where practicable, confidential informa- tion where it is necessary to do so in order to prevent the death or harm, but shall not disclose more information than is required. sor at the University of Ottawa, notes lawyers have discretion over whether to disclose or not, a fact that puts them in an ethi- cal dilemma. "There' Adam Dodek, a law profes- " the lawyer to disclose in that sit- uation," he says. "The lawyer has the discretion to disclose and essentially, it' vidual lawyer to decide whether or not to disclose and there' additional guidance." s up to each indi- s no The answers, then, aren't always obvious. "It's a high threshold," says s no duty on Chester. "This is not just blabbing information that might be of assis- tance or interest to somebody else. This is to prevent death or harm." But what happens if a lawyer fails to disclose the information and exercise the future harm ex- ception is a difficult question, says Chester. "Confidentiality is a bed- rock principle of professional eth- ics. Lawyers must keep secrets." Dodek says there are no conse- quences for lawyers if they decide not to disclose. "It is an incredibly rare situation. It is a huge dilemma for a lawyer to be in." Dodek notes it' who lawyers should make the disclosure to. But while the decision to dis- s also not clear close rests with lawyers, Elliott could see situations arising where, if there' the information and they don't do so, they could face liability if some- one suffered harm. He notes there has been liability found in the civil context where a doctor didn't dis- close a patient' s an obligation to divulge spouse. However, he says there's LT s HIV status to the no civil precedent yet for impos- ing a duty on a lawyer. Cost rule not enforced Continued from page 1 1 888 836-9786 terryfox.org SUNDAY, SEPTEMBER 16 NEW EDITION WEALTH PLANNING STRATEGIES FOR CANADIANS 2013 ChriStine VAn CAUwenberghe Your clients are at different stages in their lives and they rely on you to give them the right financial and tax advice. How can you be ready with the right answers for the wide variety of life situations that you will encounter? Wealth Planning Strategies for Canadians 2013 is the answer. This convenient resource is organized by life stage – so you are ready with quick answers as soon as your client walks through the door. • All relevant changes to the provincial and federal tax, estates and family property legislation NEW IN THE 2013 EDITION • More in-depth coverage of planning strategies for business owners and charitable organizations • Up-to-date tax rates, tax credits and social assistance rates ORDER # 985096-65203 $60 Softcover July 2012 approx. 720 pages Annual volumes supplied on standing order subscription 978-0-7798-5096-9 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 which he granted partial summary judgment in an estates matter. At the end of his decision, Brown asked that the unsuccessful party, Nancy-Gay Rotstein, file a bill of costs with her cost submissions. She failed to do so. In his initial costs decision, Brown noted that since Rotstein didn't The issue first arose at the conclusion of Brown's initial decision in provide a bill of costs, he inferred that the fees she incurred approximated those submitted by the successful party, Lawrence Smith. Brown placed little weight on Rotstein' vide a bill. Brown awarded Smith $707,173 on a full indemnity basis. Rotstein appealed the decision. The appeal court found that "there s critique of Smith's costs given that she didn't pro- is no requirement for the losing party, who is not seeking costs, to file a bill of costs although it is preferable that he or she does so. the court went on to say that if the losing party chooses not to file a bill of costs, "this is a factor that the judge, who is assessing costs, may take into account when considering the reasonable expectations of the losing party. " However, " The appeal court referred the matter back to Brown as he had erred in not considering the rest of Rotstein's cost submissions because of her failure to file a bill of costs. In his reconsideration decision, Brown noted in obiter that judges in the Toronto region haven't been insisting on vigorous compliance with the rule requiring counsel to bring cost outlines to hearings. While Brown wrote that part of the solution was for the judiciary to enforce the rule more, he also indicated that for cases where a judge reserves on a complex matter, "it might well be appropriate for the civil rules commit- tee to consider an amendment to Rule 57.01 which will authorize a judge to order an unsuccessful party on a motion or at a trial to file a bill of costs, or costs outline, as part of its responding cost submissions." Sterns agrees that most judges, particularly in Toronto, aren't enforc- ing the rule on exchanging cost outlines at the hearing. "Lawyers in To- ronto, particularly on contested motions, are hedging their bets," he says. "I don't think that amendment [to the rules] is necessary, but what this decision may well result in is Toronto judges forcing counsel to comply with the rules with a bill of costs at the hearing. notes that in some cases, one side will have more work than the other and points out that in class actions, defendants have higher disclosure obliga- tions and end up spending more money than plaintiffs. Richard Shekter, who was counsel for Smith, also notes parties can Stevenson also doesn't believe there's any need to change the rules. He " August 6, 2012 • LAw times have large cost disparities, particularly in personal injury cases. He says that in some personal injury cases, plaintiffs' counsel will retain many ex- perts and spend weeks, if not months, preparing for trial. The reality, he adds, is that insurers don't like spending a lot of money on the defence. The problem is that the discrepancy in time and costs between the two sides could hurt a plaintiff if the courts consider only the costs incurred. "It' defendant to respond to it," he says. "It' www.lawtimesnews.com scrupulous about maintaining and organizing your time." s always way more difficult for a plaintiff to present a case than for a s a two-edged sword, but the lesson I take from it is you have to be LT

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