Construction Law – Law is Cool The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 1338880 Social Media and Blogs Banned for Lawyers? Sat, 29 Nov 2008 03:41:01 +0000 Apparently these fears have arisen in the U.S. in the past.  A new case in Louisiana objects to advertising rules that would take effect in November 2009.

The Wolfe Law Group, L.L.C., who appear to be four attorneys focusing on construction law, explain on their new site,

Wolfe Law Group argues that the new rules effectively prevent a lawyer from advertising its services through online mediums, such as Google’s Adwords, as the rules also restrict an attorney’s ability to engage in discourse with colleagues, clients and the public through online bulletin boards, blogs, twitter, and other online communities and forums.

They even have a Facebook group on the suit.  Which, presumably, would be banned under the new rules too.
Meanwhile, Nicole Black says that lawyers can’t afford to ignore social media,

Lawyers cannot afford to be left out of the loop. Attorneys who successfully leverage social media tools to communicate, collaborate and network have a distinct advantage over those who don’t.

It is not necessary for each and every lawyer in a firm to learn the ins and outs of social media. But at least one person, or group of persons, depending on the size the firm, should be familiar with emerging Web 2.0 technologies and the ways in which those technologies can help and harm their bottom line. Other lawyers in the firm likewise should be receptive and listen to their recommendations regarding social media.

A recent article in Elder Law Journal even suggests that lawyers are not going far enough to market their services,

Disappointing rates of intestacy may be as much a business problem as a legal one. In this interdisciplinary law and business article, the authors investigate whether widespread intestacy may be attributable in part to the failure of the legal industry to market wills effectively. Although attorneys can market within the boundaries of the Model Rules of Professional Conduct, the majority do not take full advantage of the range of permissible marketing strategies. This Article suggests that attorneys learn the basics of marketing strategy and rely on guidance from marketing experts in order to structure effective programs to educate the public on will drafting services. By integrating both law and business, estate planning lawyers can better serve current and future clients.
[emphasis added]

Kevin O’Keefe claims that this case is not going anywhere.  There is no way lawyers would ever accept that type of infringement.
Can you imagine a world where everyone has Facebook except for you and your co-workers?
Future of Class-Actions in Canada Fri, 21 Mar 2008 20:57:19 +0000 The largest Canadian Constitutional class-action suit in currently under scrutiny.


Following M. v. H (1999), the Canada Pension Plan (1985) (CPP) was amended in 2000 to include survivor benefits for same-sex couples to comply with equality provisions under s. 15 of the Charter,

Section 15.

  1. Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
  2. Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Hislop v. Canada

However, gay activists challenged the CPP further on the following grounds in Hislop v. Canada (2007) in the largest constitutional class-action in Canada:

    1. S. 44(1.1) of the CPP, eligibility was limited to same‑sex partners whose “spouse” died on or after January 1, 1998. Benefits were not retroactive to April 17, 1985, when s. 15(1) came into force, or the date of death of the “spouse”, whichever occurred later.


      *(1.1) In the case of a common-law partner who was not, immediately before the coming into force of this subsection, a person described in subparagraph (a)(ii) of the definition “spouse” in subsection 2(1) as that definition read at that time, no survivor’s pension shall be paid under paragraph (1)(d) unless the common-law partner became a survivor on or after January 1, 1998.

      * [Note: Subsection 44(1.1) in force July 31, 2000, see SI/2000-76.]

  1. S. 72(1) limited survivor’s arrears benefits to no more than 12 months prior to the time of application, and under S.72(2), precluded payments to same-sex xurvivors before July 2001.

    Commencement of pension

    72. (1) Subject to subsection (2) and section 62, where payment of a survivor’s pension is approved, the pension is payable for each month commencing with the month following

    (a) the month in which the contributor died, in the case of a survivor who at the time of the death of the contributor had reached thirty-five years of age or was a survivor with dependent children,

    (b) the month in which the survivor became a survivor who, not having reached sixty-five years of age, is disabled, in the case of a survivor other than a survivor described in paragraph (a), or

    (c) the month in which the survivor reached sixty-five years of age, in the case of a survivor other than a survivor described in paragraph (a) or (b),

    but in no case earlier than the twelfth month preceding the month following the month in which the application was received.


    *(2) In the case of a survivor who was the contributor’s common-law partner and was not, immediately before the coming into force of this subsection, a person described in subparagraph (a)(ii) of the definition “spouse” in subsection 2(1) as that definition read at that time, no survivor’s pension may be paid for any month before the month in which this subsection comes into force.

    * [Note: Subsection 72(2) in force July 31, 2000, see SI/2000-76.]

    R.S., 1985, c. C-8, s. 72; 2000, c. 12, ss. 54, 64.

    1. S. 60(2) limits the rights of estates of survivors from benefits if the application is not made within 12 months of death.

      Application for benefit by estate, etc.

      60. (2) Notwithstanding anything in this Act, but subject to subsections (2.1) and (2.2), an application for a benefit, other than a death benefit, that would have been payable in respect of a month to a deceased person who, prior to the person’s death, would have been entitled on approval of an application to payment of that benefit under this Act may be approved in respect of that month only if it is made within 12 months after the death of that person by the estate, the representative or heir of that person or by any person that may be prescribed by regulation.

The Ontario Superior Court of Justice ruled, affirmed by the Supreme Court of Canada, that ss. 44(1.1) and 72(2) violated reasonable limits of s. 15(1) of the Charter and struck down, and exemptions were granted under ss. 60(2) and 72(1), even though they did not infringe on s. 15(1).

Douglas Elliot of Roy Elliott Kim O’Connor LLP (REKO), counsel for the plaintiffs explained the importance of the case,

With Schachter [v. Canada] and Doucet-Boudreau [v. Nova Scotia (Minister of Education)], I believe that Hislop will complete the trilogy of the three great constitutional remedy cases

Payment Ruling

On Feb. 9, 2008, a retainer agreement for the class-action approved of four years ago by the Ontario court has been challenged, which could result in the loss of millions of dollars in legal fees.

Kirk Baert, a Toronto civil litigation lawyer commented on the potential fallout of class-actions,

The result here isn’t fair. This is not a case where the lawyers were getting a windfall. They took the case to trial after many years; they had to go through two levels of (appeal) courts. It was very well done, to the benefit of a lot of people, and involved an important social issue.

It was the law firms’ work and skill and effort that generated the money flowing from the Canada Pension Plan in the first place.

Members to the class-action, such as Lothar Zeterberg of Vancouver, seemed to agree,

Nobody works for free. They (class action lawyers) spent time and money and all the rest of it doing this, so they should be compensated. No question about that.

But these types of pleas were not considered convincing by the court,

[65] I am not persuaded that this result will deter future class actions or frustrate the access to justice principles embodied in the CPA. While I am sympathetic to PCG’s position and the possible difficulties it will face in collecting the fees it deserves, it also seems prudent to suggest that future class counsel confirm that the s. 32(3) charge is available and not negated by other legislation such as s. 65 of the CPP.

Future of Class-Actions in Canada

The new big thing in law might be class action suits brought by shareholders, technically against themselves.

Securities class actions have risen enormously beyond anyone’s expectations, characterized by an astonishing increase of 300 per cent in settlement sizes.

A report by Cornerstone Research last year found that a number of mega-settlements were responsible for the growth. But they do not anticipate this to be repeated in the following year.

Other Clouds on the Horizon

An October 12, 2007 decision on another class-action landmark case against Danier Leather Inc. has raised other concerns.

The case found that a proper closing was not conducted in 1998 by two senior officers who should have realized that forecasted results were not achievable, and shareholders sued in a class-action by Lerners LLP.

Jean M. Fraser, Mark DesLauriers, Donald C. Ross and Douglas R. Marshall of Osler LLP indicated in 2004 the initial consequences of the case, which included:

  • due diligence investigation for prospectus
  • forecasts can be a material fact
  • prospectus amendments
  • minimizing date of closing
  • private placements of securities

But the more recent ruling on costs, which had been deferred, had even farther reaching consequences.

The court awarded costs in the class-action against unsuccessful plaintiffs. This is also likely have a deterring effect on the number of class-actions in the future.

Expert Opinion

To gather some more ideas on this area of legal practice, we consulted some experts in the field.

Mikio Miyawaki

Mikio Miyawaki, Partner and Chair of the M&A Practice Group at Bond, Schoeneck & King, PLLC said,

[S]ome very prominent practitoners have recently gone to prison for paying kickbacks to plaintiffs… I wonder what kind of impact the case would have.

Michael E. Clark, a partner at Hamel Bowers & Clark LLP in Houston, Texas, said,

The Stanford Securities Class Action Clearinghouse, along with Cornerstone Research, actively tracks this information and trends. It’s a wonderful resource. As you may expect, there has been a large number of filings of late related to the subprime market collapse. I know that this is the theory du jour and has engulfed large, well-heeled companies (or some that used to be like Bear Stearns).

Richard CassidyBut not everyone agreed.

Richard Cassidy, partner at Hoff Curtis in Vermont, said,

I suspect that the hayday of securities class-actions has passed.

Some of our other contacts reminded us that Cornerstone is a defense oriented organization, whose primary clients are large defence firms. Similarly, Stanford Clearinghouse is allegedly run by a professor at Stanford that testifies exclusively for defence firms.

Class-actions were also projected to grow as a litigation strategy in the future. Economies of scale can be realized by dealing with class-action suits, rather than repeated, subsequent suits, which can be costly. However, this can be an advantage to some defendants who may prefer to deal with an initial class-action up front, such as tobacco companies.

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Reasonable Accomodation of Bike Helmets Thu, 06 Mar 2008 15:55:36 +0000 Ontario Court Justice James Blacklock ruled today that laws mandating helmets do not discriminate against turban-wearing Sikhs.

Baljinder Badesha fought a fine to pay $110 for not wearing a helmet, and the Ontarion Human Rights Commissions even intervened on his behalf.

But to no avail. The court ruled that the province would face undue hardships due to safety concerns.

However, other jurisdictions in Canada and internationally have previously made exceptions for turbans.

Michael Doi for the attorney-general demonstrated before the court that Sikhs do not always wear their turbans; they make exceptions for sports, and have alternatives that are used by Canadian Forces.

This case was dissimilar from the previous soccer-ban on hijabs, which are worn frequently in international soccer clubs with no demonstratable risk to the player or others.

The soccer ban, still enforced, has not been legally challenged to date.

But John Moore of The John Moore Show on NewsTalk 1010 Toronto suggests in the National Post that there may be other factors underpinning many of these cases,

It would seem the real resentment stems from the fact that Muslims, Jews and Sikhs have hats they can wear to signify their faith while Christians do not. Surely this is an issue to take up with the church. It’s not like the Catholic, Anglican and Orthodox churches don’t have a hat tradition of their own. It’s just that the great parade of miters and birettas is restricted to the clergy. If some people feel such an urgent need to demonstrate their faith perhaps they can merely don a toque and call it a “Jesus hat.”

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Controversy Over Religious Confessions Mon, 03 Mar 2008 02:44:24 +0000
Should a person’s bona fide beliefs be used to extract confessions to crimes by the police?

Most would say no, it would violate Charter rights.

What about if the beliefs are not considered mainstream or acceptable, like Vodun, or one of its many derivatives found in the Caribbean?

In what is called the first sting of its kind in the world, ever, police constable Andrew Cooper impersonated an Obeah man to get a confession from Evol Robinson for shootings in the Toronto area.

Although the relationship between a priest is not considered privileged, O’Connor, J., said,

Determining whether Obeah or any other belief system should be accorded protection… is an undertaking that must consider the acute sensitivities attached to religious beliefs and practices, particularly in a multicultural context.

Adrian Humphreys of the National Post comments,

Imagine the uproar if Const. Cooper masqueraded as a priest taking confession from a Catholic suspect, or pretended to be an imam or a rabbi to gain the trust of Muslim or Jewish targets of investigation.

Thanks to Ainsley Brown of University of Westminster law and UWO law for the heads up. 

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Careers in Labour Law Thu, 14 Feb 2008 18:21:20 +0000 A panel of experts spoke at the University of Western Ontario on careers in labour law on Feb. 14, 2008.

Melanie Warner, Partner, Borden Ladner Gervais LLP (Toronto):
Mrs. Warner emphasized that large firms can represent both sides in labour disputes. She also said that disputes do not have to be characterized by animosity.

She has been with the firm since 1998 after graduating from UWO. She acts for employers and employees in the workplace, doing barrister and solicitor work in tribunals and courts.

She said not to get hung up by the distinction between management or union side firms. When large firms do not represent unions, it’s usually due to conflict of interests, not any ideological basis.

If a mediator or a judge is in your career aspirations, it is useful to demonstrate that you have represented clients on both sides.

Labour careers is not only litigation; it can also involve a lot of policy work and advising. In-house options are also good options after a few years in other areas of practice.

One advantage she finds in her firm is that it is like working in a boutique firm within a large firm. There are lots of resources and experts that she can draw on, even in other areas of practice.

She delegates a lot of the research and writing work, but does a lot more court work and client interaction.

Patrick Groom, Associate, Cavalluzzo Hayes Shilton McIntyre & Cornish LLP (Toronto)

Mr. Groom does a lot of arbitration work, but also a lot of research and prep work. His practice is broken into thirds: labour, criminal and construction.

He never anticipated the other areas of law, but in representing many regulated professionals he found that many of his cases crossed into these areas of practice.

He does hearings at the labour board, which involved individual grievances in a construction context, or the unions and their bargaining rates. Sometimes he addresses the existence of union as a whole.

What he thought he was going to be getting into, mostly labour arbitration, tended to be a much smaller part of his practice than he expected.

Because he is still a junior associate, much of his work includes shadowing a senior lawyer and coordinating activities.

Colin Johnston
, Labour Relations Officer, Ontario Nurses’ Association (Windsor)

A graduate of UofO law in 1997, he articled with Koskie Minskie, and then practiced independently in Windsor until joining the Nurses’ Association 5 years ago.

Mr. Johnston said that a lot of what is done in labour law is arbitration. The advantage of arbitration is there is more flexibility in evidence and a non-formal process. He does everything from discipline and termination cases to denial of LTD and insurance claims, requiring contractual interpretation. He likes dealing with people and their problems, and helping them address their problems. He gets satisfaction from making a difference in their lives.

Labour law is probably the purest form of litigation and advocacy. It involves a lot of traveling. A lot of his prep for cases occurs in coffee shops, which might not be as glamorous, but he gets different types of environments to practice his field.

Because labour law is such a small community, most practitioners on both sides get to know each other quite well. The relationships between union and management side lawyers tends to be better than adversarial relationships in other areas of law as a result.

A typical day can involve getting up very early for preparation if there is a trial that day. When in the office, he tends to do more solicitor type work. He usually works about 45 hours a week, but also has a earning cap. He’s happy because he has found balance in his life doing this type of work.

Trevor Rands, Solicitor, Legal Services Branch, Ministry of Labour (Toronto)

Mr. Rands spent some time in litigation before deciding it was not for him, and decided to move into public service. Initially he did policy work, and then moved into the Ministry of Labour branch. There are two practice groups there, litigation and prosecution, and the solicitor group. He obviously gravitated to the second group.

The three main areas of litigation work are

  1. prosecution under the Occupation and Health and Safety Acts
  2. Appeals of orders
  3. Coroner’s requests arising from fatalities at work

His work includes drafting of legislation and legal support to various clients in the Ministry with policy initiatives arising out of government commitments or cases. If there are any major legislative issues at hand, his work involves research, drafting, and meetings. Otherwise, he reviews documents that go public and opinion work.

The Ministry work does not take sides, but many of the initiatives depends on the political party in power. All parties institute changes in the name of restoring balance.

Although he feels that it is easier in the public sector to find work-life balance, there are trade-offs in compensation. The public interest component is what drives him.