Law Times

February 5, 2018

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Page 2 February 5, 2018 • Law Times The OSC found that Finkel- stein had given insider informa- tion about the Masonite Deal to his friend Azeff, who was a CIBC investment advisor at the time. Azeff then relayed that information to others, the OSC decision said. Cheng, who was the last link in the chain below Miller, argued in his appeal to the Divisional Court that Miller had told him the information was a rumour. A 2017 Divisional Court rul- ing had allowed the appeal of Cheng, who was allegedly the last link in the tipping chain, as the court found the panel made mistakes in assessing the evi- dence. The OSC appealed that rul- ing and the Court of Appeal reinstated the panel's original decision, saying its finding of liability against Cheng was rea- sonable. Janice Wright, one of the law- yers representing Cheng, says her client is disappointed with the result. "We are considering his op- tions, including the possibility of an appeal," she says. The Divisional Court had dismissed Miller's appeal, who then appealed that decision to the Court of Appeal. Simon Bieber, one of the law- yers who represented Miller, says that going forward it remains to be seen whether the same factors will be used in future cases. "I think the court's decision leaves it open for the next panel to pick some of these and per- haps incorporate new ones," he says. He adds that the court "side- stepped" the issue of standard of review, which he said was unusual. Cheng and Miller had argued that the standard of re- view should be correctness, but the Court of Appeal found the applicable standard of review to the panel's interpretation of the act should be reasonableness. At press time, Bieber could not say whether his client in- tended to seek leave to appeal the decision to the Supreme Court of Canada. The Divisional Court had also dismissed the appeals of Finkelstein, Paul Azeff and Ko- rin Bobrow, who made up the other links in the tipping chain. Anita Anand, a law professor at the University of Toronto says the decision shows the high level of deference the Court of Appeal will show the OSC because of its level of expertise in the area. "The definition of special relationship in the Securities Act is complex and it is not often considered by tribunals or courts, and here we have the definition of special relationship considered by both and in fact upheld by the highest court in Ontario," she says. In an emailed statement, Jen- nifer Lynch, senior litigation counsel with the OSC's enforce- ment branch, said the Court of Appeal decision confirms that "reasonable inferences of fact are expected and necessary in prov- ing insider tipping and trading cases." LT Continued from page 1 Case shows deference to OSC expertise hearing overwhelming support to extend it. Other options could include ending transitional training as a requirement, limited or special- ized licensing. A United States-style bar examination system could be another possible option, as the committee has also been explor- ing the way other jurisdictions license lawyers. It is not clear yet what the committee will propose, but LSO Treasurer Paul Schabas says the profession will have the opportu- nity to comment on the options after they are released and before benchers vote on them. Some have called for a com- plete overhaul of the licensing system and the abolishment of articling. Others would like to see less drastic reforms to the system such as shortening the length of time students article. Richa Sandill, an employ- ment and human rights lawyer at MacDonald & Associates LLP, who participated in the Dialogue on Licensing, says the biggest problem with the current articling system is an extreme lack of consistency. "One articling student's expe- rience can be completely differ- ent from another articling stu- dent's experience," she says. When Sandill entered the licensing process, she had the choice between the LPP and ar- ticling. She said she chose articling because she wanted in-firm ex- perience. It, however, took her more than a year to find a posi- tion. She says that she had a great experience once she found her position, but that is far from the case for everyone. Sandill was part of a group that surveyed 221 articling stu- dents and found 15.8 per cent of respondents had not been paid at all for articling and 16.8 per cent received less than the mini- mum wage. The study, which was con- ducted through a website called Law Job Exchange, found that of the unpaid articling students that were surveyed, 60 per cent said they would not article at the same place again and 85.7 per cent were not hired back at the end of their articling term. Sandill says it is time for un- paid articling positions to be banned. "If a firm is investing in a stu- dent . . . a firm will put more into that person's development and get more use out of them," she says. "I think that's one big crack that I have really been pushing for in this entire process to get filled." As part of its review of the li- censing process, the law society conducted a survey that found one in five recent or current articling students had experi- enced some kind of unwelcome comment or conduct based on a personal characteristic, such as gender, race or sexual orien- tation. The regulator is now re- viewing its rules when it comes to discrimination and harass- ment. For lawyer John McCrae, the testing process served as a big hurdle to licensing. After he graduated from the University of Ottawa's law school, he found an articling po- sition with WeirFoulds LLP, but he had to take both the barrister and solicitor licensing examina- tions multiple times each before he succeeded. McCrae, who has cerebral palsy, says that while the Law Society of Ontario provided him with special accommodations, it took him some time to figure out exactly what he needed to take the exams successfully. He fulfilled a lifelong dream of becoming a lawyer on Jan. 26, when he was called to the bar. McCrae says the law society's accommodations are based on candidates being proactive to express what they need, but it is not necessarily easy for an in- coming candidate to know what they need in their first attempt at the exams. McCrae says the process could be made better if there was a licensing candidate peer-to- peer network. He says that while he thinks the law society should be barri- er-cognizant in how lawyers are licensed, it should not be barrier- free. "I think it should change its process, but it shouldn't change its standards of competency just under the guise of access to jus- tice," he says. McCrae says the law society should also do away with mul- tiple choice on exams. "The licensing exams such as they are constituted now are not an accurate barometer for what you do as a lawyer," he says. In 2016, the law society con- sidered a new exam called the Practice and Procedure Exam- ination, which would replace the bar exam and be given to can- didates before they receive their experiential training. It also explored imple- menting a Practice Skills Exam- ination that would be added to licensing requirements. But, these two initiatives were shelved when the committee chose to extend the LPP. LT LSO looks to tackle 'articling crisis' Continued from page 1 NEWS 400 UNIVERSITY AVE. — Interior and exterior offices available with associate secretarial stations adjacent to Univer- sity Avenue courthouses. Office support avail. Collegial environment with poten- tial for referrals. From $1,750.00. Contact Darlene 416-365-0000 x144 LAW TIMES Marketplace This is more than a phone book. With Canadian Law List 2018 you have access to: • an up-to-date alphabetical listing of more than 80,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges across Canada • all contact information supplied for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown Corporations • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid and other important law-related offices THE LATEST CONTACT INFORMATION IN A USER-FRIENDLY FORMAT THAT IS BEYOND TRADITIONAL LISTINGS Continually updated by a dedicated team of professionals, Canadian Law List includes value added features such as: • last name first identification in the federal and provincial listings • separate section of corporate law departments for more than 1,250 companies • professional cards of prominent Canadian law firms • International Agency Referral Cards Hardbound • Published February each year • L7798-7859 • On subscription $179* • One time purchase $199* Multiple copy discounts available * Plus shipping/handling and applicable taxes ORDER YOUR COPY TODAY! Call 1.800.387.5164 or visit for a 30-day no-risk evaluation KEEPING PACE WITH THE CHANGING LEGAL COMMUNITY Untitled-2 1 2018-02-01 8:02 AM 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

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