Law Times

January 30, 2017

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LSUC ordered to pay $1.3M to partners BY ALEX ROBINSON Law Times T wo former Torys LLP partners, who endured an 11-year-long battle with the Law Society of Up- per Canada to clear their names of wrongdoing, have won $1.3 mil- lion in costs from the provincial regulator. The law society tribunal appeal division ordered the LSUC to pay $650,000 each to Darren Sukonick and Beth DeMerchant, after the lawyers successfully fought allega- tions they had acted in a conf lict of interest while working on the sale of Conrad Black's Hollinger group of companies. Both have since retired. The two lawyers were accused of acting in a conf lict of interest in six transactions between 2000 and 2003, but after 138 days of hear- ings, a panel found that there was no evidence to find the pair had engaged in professional miscon- duct. The hearing panel awarded the two lawyers with $250,000 in 2014, but the law society appealed the decision. In Law Society of Upper Can- ada v. DeMerchant, released Jan. 20, the appeal panel found that the law society should cover the cost of 110 days of hearings. The panel also increased the amount each lawyer would receive to $650,000 — costs lawyers say are the largest ever retrieved from the LSUC. Lawyers say it is rare enough for lawyers to retrieve any costs from the law society after having cleared their name in the regulator's disci- plinary tribunals. "It's an outlier in terms of get- ting costs. Certainly, it's hearten- ing from my perspective to see that in the right situation a significant amount of costs can be awarded in favour of the lawyer," says Brian Radnoff, a lawyer who represents other legal professionals in law so- ciety disciplinary proceedings. Radnoff was not involved in the DeMerchant proceedings. END SHAREHOLDER PRIMACY Embrace age of corporate social responsibility P7 FOCUS ON Intellectual Property Law P8 See Lawyers, page 2 PM #40762529 $5.00 • Vol. 28, No.4 January 30, 2017 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 Ian Smith says a recent ruling by the law society tribunal appeal division puts an end to a difficult ordeal for a lawyer accused of a conflict of interest. NEW COMMITTEES Will JACs be able to swiftly appoint judges? P4 BY SHANNON KARI For Law Times A n Ontario Superior Court judge has found that the "deemed un- dertaking" rule was breached when two Toronto law- yers exchanged hundreds of pages of private records about a sexual as- sault complainant with no notice to a court, the woman or her counsel. Justice Wendy Matheson made the finding in a decision that she said is the first case in the prov- ince to interpret the "mechanics" of the impeachment exception in the Rules of Civil Procedure when it comes to the use of compelled documents from one case in an- other legal proceeding. "The Rules of Civil Procedure have acknowledged that plaintiffs remain entitled to some measure of protection of their privacy and are entitled to limitations on the use of their discovery evidence outside the proceedings for which the discovery was compelled," wrote Matheson in her ruling, S.C. v N.S., issued on Jan. 16. The complainant is alleging that she was sexually assaulted by N.S. in 2014 on two occasions, in Toronto and in Waterloo, Ont. N.S. was charged criminally in both cases. The defendant was acquitted in Waterloo. The Toronto criminal trial has been adjourned until next month. It is a Youth Criminal Justice Act proceeding, since the defen- dant was less than 18 years old at the time of the alleged incidents. The complainant, a young woman, is also seeking $1.5 mil- lion in damages against the de- fendant and the University of Wa- terloo, alleging that the university and its employees failed to provide proper security. Any counsel seeking to make use of the impeachment excep- tion within the deemed undertak- ing rule must first seek directions from a court and cannot act uni- laterally, said Matheson. "The moving party [defen- dant's civil lawyer] did not do so and therefore failed to deploy the exception properly, breaching the undertaking," she wrote. The judge rejected arguments by lawyers for the defendant that privacy rights are given up by a plaintiff once she launches a civil action. See Documents, page 2 Joanna Birenbaum says 'sexual assault complainants are going to have to think very carefully about the timing of production' of records in a civil case when there is a parallel criminal proceeding. Photo: Robin Kuniski Rule broken when records exchanged: judge Follow A DAILY BLOG OF CANADIAN LEGAL NEWS LEGALFEEDS.CA FEEDS LEGAL POWERED BY POWERED BY LegalFeeds_LT_Jan30_17.indd 1 2017-01-24 2:20 PM e: Litigation Support Our Document Management Services include: Scanning • Indexing • OCR (Optical Character Recognition) • Electronic Document Capture and More - Call Us, We Can Help! ntitled-1 1 2014-09-26 9:29 AM

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