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August 21, 2017

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Page 2 August 21, 2017 • LAw times NEWS order that Burlington Resour- ces return to a discovery exam- ination as there were disputed questions that were relevant to the matters at issue. Burlington opposed the motion, saying all proper questions had been fully answered. The Crown claimed that re- fusing to answer questions on the basis they were being taken "under advisement" was a mis- use of the examination for dis- covery process. The government argued that by taking so many questions under advisement Burlington Resources was ignoring s. 107 of the court's rules, which require parties to give reasons when they refuse to answer a question. Taking these questions also deprived the Crown the oppor- tunity to reformulate questions, they said. D'Auray agreed. She noted that, according to the rules, a nominee must either answer the question, refuse to do so and explain why or take "an undertaking" if they do not know the answer. "The 'under advisement' quasi-objection is often a tactic used to gain time to ref lect on which basis the question will be refused, without the party hav- ing to explain, at the time of dis- covery, why such question was refused," D'Auray said. "It deprives the party asking the question of the opportunity to rephrase the question. In my view, taking a question under ad- visement amounts to a 'refusal.'" Sunita Doobay, a tax lawyer with TaxChambers LLP who was not involved in the case, says the court's rules need to be revised in order to deal with D'Auray's concerns. "Until the rules are revised, I believe there is little to refrain a practitioner from 'buying time' for his [or] her client to decide whether to answer the question posed to them at discovery for a matter that is being appealed be- fore the Tax Court of Canada," she says. D'Auray also noted that there can be cost consequences when the tactic of taking questions under advisement without ex- planation "hinders the examin- ation." Brandon Siegal, a tax lawyer and principal of Siegal Tax Law, says he still plans to use under advisements from time to time but with the understanding that government lawyers might push back by citing this decision. "I certainly will use it a lot more sparingly because at the end of the day as the court has said, an under advisement is a re- fusal, and so you have to look at it as such. And you need to have the proper reasons for it," says Siegal, who was not involved in the case. The Federal Court banned taking questions under advise- ment in 2015, and the Tax Court could be very well be headed in that same direction, Taylor says. "If this practice isn't curtailed now through judicial commen- tary, it's equally possible that the Tax Court will follow the Fed- eral Court's notice to the profes- sion by saying no further ques- tions taken under advisement," she says. The lawyers who represented the applicant in the proceedings declined to comment, as did the lawyers representing the federal government. LT Continued from page 1 Rules need revising to deal with judge's concerns: lawyer ly impact the law society's man- date to protect the public." Matthew Wilton, Cengarle's lawyer, says that if the Division- al Court rules in the law soci- ety's favour, it could make what is already an uphill battle even harder. Motions for interlocu- tory suspensions can be brought within three days notice and are a tool the law society has employed more often in recent years in an attempt to protect the public from lawyers accused of misconduct. If granted, interlocutory sus- pensions bar lawyers from prac- tising law while an investigation into alleged wrongdoing is on- going. Lawyers who defend practi- tioners in discipline proceedings say part of the test to determine whether a lawyer should receive an interlocutory suspension is too easy to meet and that tribu- nal panels have been too quick to rely on it. The test holds that a lawyer should face an interlocutory suspension if they pose a risk of harming the public or if there is a significant risk of harm to the public interest in the adminis- tration of justice. "As lawyers, we would never allow a court to do to our clients what the law society is doing to its own members. It just defies logic. That test is simply too easy," says Darryl Singer, a law- yer who defends practitioners in discipline proceedings. In the decision regarding disclosure in Cengarle's case, David Wright, chairman of the Law Society Tribunal, noted that the degree of risk in the test "need not be very high" and that the potential harm "need not be substantial," although meeting them will not automatically re- sult in a suspension. Lawyers say this low thresh- old can be particularly problem- atic when the law society brings interlocutory suspensions after a guilty finding is reached or a guilty plea is entered but before a penalty hearing is held. Singer says this is grossly unfair because the issue of pen- alty has not been argued at that point. "The problem is simply one of natural justice," he says. "The test for an interlocutory suspension is so much lower than for a suspension on the penalty phase after a finding of professional misconduct." In the first six months of 2017 alone, the law society issued 19 interlocutory suspension mo- tions, compared to just three in all of 2012. Lawyers have expressed concern over the bump, saying interlocutory suspensions can effectively end a lawyer's career without even having a hearing on the merits of their case. "There's a cruel irony to the fact that lawyers' own self- discipline processes are provid- ing less procedural protections to lawyers than any other pro- fession," says Wilton. "We're supposed to be at the vanguard of defending our cli- ents' civil rights, and yet we have a system in place now that makes it far easier for lawyers to be sus- pended on an interim basis than equivalent other professions." He says that if the law society succeeds in having the panel's decision overturned in Cengar- le's case, it would mean lawyers would not have adequate dis- closure in their defence against interlocutory suspensions. As part of an effort to investi- gate complaints more effectively and efficiently, the law society has reorganized its professional regulation division so that law- yers are involved earlier on in the process. The law society has said this is why more interlocu- tory suspension motions have been issued recently. Lawyers say media scrutiny was also a factor pushing the regulator. The LSUC did not provide comment for this story, but it did provide comment for an ear- lier Law Times story on inter- locutory suspension. It said that while interlocutory suspensions can have a big impact on an ac- cused lawyer's professional life, they are a necessary tool to pro- tect the public. LT Concern expressed over bump in motions Continued from page 1 Where are we today with the law of judicial notice? While social diversity and information technology mean we share more knowledge in common, what if "what everybody knows" is wrong? The Law of Judicial Notice is the the only book-length publication of its kind. The work provides: • Comprehensive clarification of the law of judicial notice, from the scholarly to the practical aspects • Guidance on each part of the doctrine and its various "schools" • An historical overview from the middle ages to the current state of the law • A procedural checklist and table documenting the doctrine's progress and subject matter in Canadian courts New Publication The Law of Judicial Notice Jeffrey Miller, B.A., M.A., LL.B. © 2017 Thomson Reuters Canada Limited 00245FG-A87672-CM AVAILABLE RISK-FREE FOR 30 DAYS Order online: Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # 988026-65203 $129 Hardcover approx. 250 pages June 2017 978-0-7798-8026-9 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Untitled-4 1 2017-08-14 4:06 PM

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