Commentary: New Brunswick Real Estate Association v. Estabrooks, 2014 NBCA 48

By Stewart McKelvey


“The majority decision in Estabrooks will be a good precedent for professional regulatory bodies sued for malicious prosecution based on disciplinary proceedings that turned out to be unfounded – and for counsel and litigants urging a cautious approach to the expansion of any contested tort. But as the dissent points out, there is now a conflict in the Canadian case law on malicious prosecution. It might take a trip to the Supreme Court of Canada to settle the dispute.”


Contract on toilet paper slammed by Saskatchewan Law Society

Lawyer was unhappy with being asked to furnish a retainer agreement

CBC News Posted: Jun 24, 2014 5:30 AM CT Last Updated: Jun 24, 2014 5:30 AM CT

A Saskatchewan lawyer who submitted a piece of toilet paper as proof of a contract with his client has been sharply rebuked by the province’s law society.

In a decision recently published to an online legal database, Ron Cherkewich, from Prince Albert, Sask., has been ordered to pay a fine and investigative costs totaling $10,500 for the ill-advised stunt, which the law society said amounted to conduct unbecoming a lawyer.

According to the decision, Cherkewich’s behaviour — described as “rude and provocative” — took place in 2011 while he was representing a client who had filed a claim under Canada’s Indian Residential Schools Settlement agreement.

The full story

Sask CA Decision: Merchant v Law Society of Saskatchewan

Evatt Francis Anthony Merchant v Law Society of Saskatchewan, [2014] SKCA 56



[1] This case concerns Evatt Francis Anthony Merchant (“Mr. Merchant”), a lawyer who has been disciplined by the Law Society of Saskatchewan pursuant to The Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1 (the “Act”) and the Law Society Rules. A Law Society of Saskatchewan Hearing Committee (the “HC”) on December 12, 2011, determined he was guilty of conduct unbecoming in respect of a two count amended formal complaint that
he did:

(i) breach a Court Order of Mr. Justice Smith dated June 4, 2003 (the “Smith order”) that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; Reference Chapter XIII of the Code of Professional Conduct
(ii) counsel and/or assist his client, M.H., to act in defiance of a Court Order of Mr. Justice Smith dated June 4, 2003; Reference Chapter XIII of the Code of Professional Conduct

The full decision

Moore v. Getahun, 2014 ONSC 237 (CanLII)

An important/noteworthy decision on what is appropriate conduct between lawyers and experts retained to prepare reports was released earlier this week – Moore v. Getahun, 2014 ONSC 237 (CanLII), <>
Notable excerpts include: 

[50]           For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.

[51]           If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.

[52]           I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.

A Woolley: Supreme Court of Canada on Conflict of Interest

Our own Alice Woolley wrote a comment for the Legal Ethics Forum on Canadian National Railway Ltd. v. McKercher LLP 2013 SCC 30.

Today the Supreme Court of Canada issued its judgment in Canadian National Railway Ltd. v. McKercher LLP 2013 SCC 30.  The decision does not break new ground, but it does clarify the rules governing conflicts between two current clients of a law firm – i.e., that a law firm may not act for clients with directly adverse legal interests, even in matters that are unrelated, without the client’s consent.  That “bright line” rule had been the subject of debate and argument amongst the Canadian legal community, with the Canadian Bar Association arguing that the bright line should only create a rebuttable presumption.  The Supreme Court held that the rule was still in place.  At the same time, they arguably qualified its application insofar as they made it clear that “the bright line rule does not apply in circumstances where it is unreasonable for a client to expect that its law firm will not act against it in unrelated matters.” (para 37).  In addition, they were clear that disqualification of the law firm is  not an automatic response to a finding of conflicts.  Disqualification is required where there is a risk of misuse of confidential information, to avoid the risk of impaired representation or to protect the administration of justice.  When the last of those is at stake the Court may take into account “(i) behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in bringing the motion for disqualification; (ii) significant prejudice to the new client’s interest in retaining its counsel of choice, and that party’s ability to retain new counsel; and (iii) the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule and applicable law society restrictions.” (para. 65)

For the rest of her post, click HERE

For the judgment, click HERE

Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30

Judgments and orders — Reasons — Trial judge delivering reasons for judgment consisting of reproduction of plaintiffs’ written submissions — Whether trial judge’s decision should be set aside because reasons for judgment incorporated large portions of material prepared by others.

From the judgment:

The question before us is whether a trial judge’s decision should be set aside because his reasons incorporate large portions of material prepared by others, in this case the plaintiffs.

1.         A Matter of Procedure

[12]                           Judicial decisions can be set aside either for substantive errors or procedural errors.  A complaint that a judge’s decision should be set aside because the reasons for judgment incorporate materials from other sources is essentially a procedural complaint.  It goes not to whether the decision is correct on the merits having regard to the evidence and the law, but to whether the process by which it was reached is procedurally fair.  A fair process requires not only that the parties be allowed to submit evidence and arguments to the judge, but that the judge decide the issues independently and impartially as the judge is sworn to do.  Extensive incorporation may raise concerns that the judge has not done so.

[13]                          To determine whether a defect relating to reasons for judgment is evidence of procedural error negating a fair process, the alleged deficiency must be viewed objectively, through the eyes of a reasonable observer, having regard to all relevant matters: see e.g. R. v. Teskey2007 SCC 25 (CanLII), 2007 SCC 25, [2007] 2 S.C.R. 267.  Reasons need not be extensive or cover every aspect of the judge’s reasoning; in some cases, the basis of the reasons may be found in the record.  The question is whether a reasonable person would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently.

For the full judgment on CanLII, click HERE

CBC: Articling law students caught plagiarizing

From CBC News Online: Work stolen for ethics essay

Posted: Apr 24, 2013  12:51 PM CST; Last Updated:  Apr 24, 2013  12:39 PM CST

Two law grads have been caught plagiarizing an essay on ethics while they were articling.

The students were caught stealing material for an assignment that’s part of the bar exam process.

Law dean Sanjeev Anand sat on the Law Society of Saskatchewan committees that looked at the cases.

Both Darby Jane Bachynski and Joanie Stephanie Paquin were found guilty of stealing material.

In one decision, Anand quoted another case that said, “next to stealing, cheating and lying are the most egregious activities a lawyer can engage in.”

Anand writes that he’s mystified by the students’ behaviour.

“It is baffling why students who have successfully completed a law degree, in what can only be hoped is a singular instance of profoundly poor judgment, decide to gamble their reputation by cheating on what is acknowledged by most as a relatively straightforward evaluation.”

The students had submitted the essays last October.

But plagiarism detection software, used on all the essays that had been submitted, revealed that the papers were similar to an essay done a year earlier by another student.

Bachynski and Paquin must write a new ethics paper, write another essay outlining what they did wrong, and push back any applications to become lawyers by three and four months.

A Woolley: Independence of the Bar and the Prevention of Money-Laundering

On ABLawg, May 8, 2013, Alice Woolley considered:  Federation of Law Societies of Canada v Canada (Attorney General) 2013 BCCA 147.


On April 4, 2013 the British Columbia Court of Appeal issued its decision in Federation of Law Societies of Canada v Canada (Attorney General), 2013 BCCA 147 which upheld the earlier decision of a chambers judge that aspects of Canada’s money-laundering legislation violate section 7 of the Charter of Rights and Freedoms and cannot be saved under section 1.

In her initial judgment (2011 BCSC 1270) the chambers judge held that aspects of the money-laundering regime undermined the lawyer-client relationship and, in particular, eroded the solicitor-client privilege, which created an unjustified violation of section 7 (para 144). Because the alternative regime implemented by the provincial law societies was an effective alternative that had a more minimal effect on the liberty interests of clients, the money-laundering regime could not be saved under section 1. The law societies’ regulation ensured “that proportionate and dissuasive criminal, civil or administrative sanctions be available for non-compliance with anti-money laundering requirements” (para 154).

To continue reading, and for a PDF of her analysis, click HERE