Law Times

April 30, 2018

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Page 2 April 30, 2018 • lAw Times on commissions and tribunals provides an important perspec- tive to Convocation. "That experience that bench- ers have as adjudicators on other commissions, public agencies, boards and tribunals is invaluable to their work as benchers," says Graeme Hamilton, a partner with Borden Ladner Gervais LLP. "They are on the front lines of administrative tribunal pro- ceedings." Hamilton adds that he does not see a conf lict arising sim- ply because some benchers sit on other public agencies and boards. He says that if such a change were made, it would mean a significant number of in- dividuals would be disqualified from seeking election, which would not be in the profession's interest. Alan Heisey, of Papazian Heisey Myers, says it should be up to individual benchers to deal with possible conf licts on a case- by-case basis. He says that if Convocation is set to vote on legislation that might impinge on an area where a bencher is sitting as another board member, then the simple answer would be to declare a conf lict on that particular item. "I am vice chair of the Toron- to Transit Commission. How does that conf lict with being a bencher?" he says. Sharda's comments that spurred the motion were made at Convocation in December 2017 during a discussion about whether the scope of family law should be expanded to allow paralegals to practise in the area. Speaking in opposition to the idea, Sharda questioned whether "competent representation" was being provided by paralegals under the system to date. "On a weekly basis, I sit as a deputy judge. Not a week goes by when I don't get a colleague coming to me and asking me, do paralegals have to speak English, do paralegals have to know how to properly provide documenta- tion to the court?" Sharda said at Convocation, according to law society transcripts. "Every week I hear this, and ev- ery week as a bencher I have to be defending a process which, if you actually go and canvass the peo- ple before whom our paralegals represent, you will find that there is an actual disconnect between this organization and the real- ity on the street. And the bottom line is in 10 years of regulation, we have failed to establish a baseline of competency for paralegals." Brown says Sharda's com- ments "struck a raw nerve" with him and that any casual and objective observer would find those comments biased for someone who holds a role as an adjudicator to make. Sharda did not immediately respond to a request for comment. Brown says he is less con- cerned with the fact that the comments were made by a bencher than the fact they were made by someone who holds a role as an adjudicator. Brown adds that the motion is not meant to punish Sharda and his hope would be for the changes to come into effect for the next bencher election. Susan Tonkin, an LSO spokes- woman, said in an emailed state- ment that the law society "looks forward to discussion of the mo- tion at the annual general meet- ing next month." The meeting is set to take place on May 9 at the law society. If the motion is approved, it would not become binding, but Convocation would have to con- sider it. The motion comes as the law society is considering possible governance reforms that could impact the number of benchers and their roles going forward. Bencher Janet Leiper, who is head of the governance task force, noted that she has a per- ceived conf lict of interest in re- spect to the subject matter of the motion, as she is a member of a number of adjudicative boards. "It would be interesting, however, to know the policy ra- tionale behind the fairly broad conf lict of interest assumptions that are built into this motion though," she says. LT test for getting a Mareva injunc- tion easier for plaintiffs to prove. The court found that plaintiffs are not required to "adduce direct evidence" showing the defendants were actively dissipating their as- sets and that a serious risk of such an occurrence was enough. One of the other issues on ap- peal was whether timeliness is a factor that should be considered in granting a Mareva injunction. The plaintiffs argued that this is not one of five requirements that are set out in case law for such injunctions. The divisional court found that "while delay may be a rel- evant factor in some cases . . . it is not a relevant factor where a risk of dissipation of assets is the ba- sis for moving without notice." The court added that de- lay would only appear to affect plaintiffs' chances of recovering damages and would not preju- dice defendants in fraud cases. Jason Squire, a partner with Lerners LLP, who was not in- volved in the case, says the de- cision provides a pretty clear set of directions from the Divi- sional Court to judges who deal with these kinds of injunctions daily, as to what to do with a set of fraud allegations and whether to grant Mareva orders on an ex parte basis. "In a case of fraud, tipping the other side off that you are pro- ceeding with litigation can raise — and it did in this case — the presumption or expectation or a serious concern that the other side will take their assets out of the bank," he says. ". . . So there is a really important place in the fraud investigation world to be able to get these orders without putting the other side on notice." The defendant could not be reached for comment. LT to allow prejudgment execution must bow to the goal of ensuring the civil justice system is able to provide remedy against fraud. "If funds cannot be frozen in advance, a vital arrow in the civil law's quiver to address seri- ous fraud will be lost," said the decision of a three-judge panel. "This is a narrow exception to the general rule against prejudg- ment execution." Lawyers say the decision is also an important affirmation of the original spirit of a Mareva injunction, especially in fraud matters. Matthew Latella, a partner with Baker McKenzie LLP, who was not involved in the case, says it recognizes the unfortunate re- ality that sometimes there is a suf- ficient threat of serious injustice that the ordinary rules regarding notice do not apply and that there are adequate safeguards built in to protect against abuses. "The days of ex parte Mareva motions being rejected, regard- less of whether the test has been met, simply because there is a perception that it would be pref- erable to give notice must give way to the application of the test for remedy," he says. Zibarras says the decision also confirms that the court can infer evidence of dissipation as op- posed to needing actual evidence, making one of the elements of the NEWS Task force working on governance policies Continued from page 1 Continued from page 1 Divisional Court rules on Mareva injunction Various Positions Chumak & Company LLP is currently hiring for several positions. We are a leading boutique law rm specializing in intellectual property law located in Toronto (east side) and we are looking for 1) a senior intellectual property lawyer or agent with a portable practice, 2) a mid-level lawyer with 5+ years' of experience in patent and trademark matters, and 3) an administrative professional/ law clerk with patent prosecution experience. We work on a variety of patent, trademark, and IP litigation les and each successful candidate will be a team-based player with excellent writing and inter-personal skills who is able to manage multiple deadlines. 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