Law Times

October 30, 2017

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Page 2 OctOber 30, 2017 • Law times was restricted to shipping ser- vices from or to Canada. The absent foreign claimants were defined as persons that did not reside in Canada and entered into shipping contracts outside of the country. Leitch, in her decision issued in August 2015, relied on foreign expert evidence presented by the defendants that an Ontario court judgment would not be recognized or enforced in other countries. "Instead, absent for- eign claimants will be able to bring further litigation against the defendants in their 'home' countries, where the preclusive effect of the Ontario judgment will be ignored," the judge wrote. As a result, defendants could be exposed to "double recovery" in any Ontario settlement if the class is expanded to include the foreign claimants, she suggested. The Court of Appeal dis- agreed and found that it was an error to restrict the analysis to "traditional bases for jurisdic- tion" such as presence or con- sent. Instead, the first step should be to apply the real and substan- tial connection test set out by the Supreme Court of Canada in 2012 in its Van Breda decision. Paul Bates, senior counsel at Siskinds and co-counsel for the plaintiffs in Airia, suggests that the Court of Appeal came up with a "made-in-Canada approach" in setting out the framework to determine if there is jurisdiction over absent for- eign claimants. "The decision is balanced in its interpretation of past juris- prudence with respect to class proceedings, rather than allow- ing it to be determined by for- eign laws," Bates says. In outlining whether there was a real and substantial con- nection, the Court of Appeal noted that the defendants carry on business in Ontario, there are common issues over which the court has jurisdiction and part of the alleged conspiracy took place in this province. As well, there has been wide- spread notice issued by the plaintiffs with potential class members from more than 30 countries already registered to receive information about the action. "There are a number of con- textual factors that connect this case to Ontario," says Bates. The court heard that at least 11,000 customers in Ontario were "arguably impacted" by the price-fixing conspiracy. The addition of absent foreign claim- ants could more than double the class number. Kevin O'Brien, a partner at Osler Hoskin & Harcourt LLP in Toronto, who was not in- volved in this case, says the rul- ing provides guidance in this area of class action litigation. "Any time the Court of Appeal can address certainty and pre- dictability in multi-jurisdictional class actions, that is a welcome development," says O'Brien, who specializes in corporate and com- mercial litigation. At the same time, for lawyers that defend class actions, double recovery remains a concern if foreign courts do not recognize Ontario's jurisdic- tion and plaintiffs in their home country "try to get a better deal," he notes. "The defendant may effec- tively have to pay twice," says O'Brien. Arguing that Ontario is not the appropriate forum for a global class action is often a high bar for defendants. As a result, "considerations of fairness" — which are often very fact specific — will likely be put forward to state why absent foreign claimants should not be included in an action, O'Brien explains. If the defendants decide to seek leave to appeal to the Su- preme Court, it may well be granted, suggests O'Brien. "Its application to global class actions is an important issue," he says. LT 'The defendant may effectively have to pay twice' Sandaluk & Kingwell LLP, who was not involved in the case. A spokeswoman for the law society says the regulator already offers a number of supports and resources for all lawyers, which are also responsive to the needs of immigrant lawyers practis- ing in Ontario. These include a coaching and advisory network and a practice management helpline. But Sandaluk says more needs to be done to encourage experienced lawyers to pro- vide mentorship, particularly in smaller communities and in practice areas that are dominat- ed by small firms and sole prac- titioners. He says simple things that might give rise to suspicion for an experienced lawyer might go unnoticed by someone new to practising law in Ontario. "Even lawyers from here who are well established in their communities, who have lived in Toronto all their lives, need that kind of mentorship," he says. "And I think that the need is even more pronounced when somebody is coming from a dif- ferent place and they don't have the benefit of a community or a segment within the legal com- munity they can turn to." After Okpala passed the bar, he struggled to find an articling position. He filled out 500 ap- plications for articling positions at firms, banks and the govern- ment. He got only two inter- views, but he did not get offered a position. The law society panel found the difficulties of finding an articling position in Ontario were likely compounded by ra- cism and prejudice, whether "unconscious bias or intentional discrimination." Okpala eventually found a position in Burlington, Ont., but he soon realized he could not afford the commute from Ham- ilton, where he lived. He later found another position closer to home and finished his articles. He launched his practice as a sole practitioner after being called to the bar in 2007, as he did not receive a single interview from around 100 employers to which he applied. Okpala started his practice doing mostly immigration and refugee work, but he eventually started doing wills and estates, as well as real estate and corporate law. He declined to comment for this story, but his lawyer, Daniel Goldbloom, says he accepts the decision as a fair one. "Throughout this process, he acknowledged that he made mistakes and took responsibil- ity," he says. "He fiercely denied the law society's allegations that he knowingly participated in dishonesty or fraud. The tribu- nal agreed with him." Goldbloom, who practises at Simcoe Chambers, adds that Okpala has taken the steps to correct the "identified issues" and that he "remains committed to servicing clients to the highest standards." The panel found Okpala had also acted for both transferors and transferees on the trans- actions in question — something barred by the law society's Rules of Professional Conduct. He had also recommended structuring a transaction for tax purposes without a proper basis for doing so, the decision said. Faisal Mirza, a lawyer who represents practitioners in law society tribunals, says the law society has a duty to continue to find ways to support all lawyers — especially those who are for- eign trained who experience dif- ficulty finding articles, employ- ment and effective mentorship. "The law society is viewed by some segments of the profes- sion as an institution that is not interested in supporting disad- vantaged candidates or lawyers overcome systemic or personal hardships," he says. "Historically, it has been fo- cused on harsh punishment for those that make mistakes. Many of the disciplinary rulings still relied on by discipline counsel and panels support that unbal- anced position has prevailed more often than decisions like this." In the year after his suspen- sion, Okpala will only be able to practise real estate law if super- vised. After that, he will only be able to practise real estate if mentored. He will also have to undergo a practice review and undertake additional profes- sional training in real estate law. The law society also ordered him to pay $20,000 in costs over four years. LT More mentorship for lawyers needed Continued from page 1 NEWS Continued from page 1 561-391-3344 f 561-948-4713 d 561-910-7861 Florida Probate and Tax Planning Services STEVEN Z. GARELLEK Florida Bar Board Certified in International Law Member of the Florida, Ontario, and New York Bar 200 East Palmetto Park Road, Suite 103, Boca Raton, FL 33432 ntitled-2 1 2017-09-13 1:45 PM VOTE FOR THE LEADING Intellectual Property and Labour & Employment Boutiques To complete the survey visit VOTING EXTENDED TO NOVEMBER 6 TH Untitled-3 1 2017-10-24 2:34 PM

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