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.”


R Mendleson and R Brennan, Judging of judges should be public: Opposition critics

 Critics at Queen’s Park are calling on the province to lift the veil of secrecy that keeps the public in the dark about investigations into complaints against judges.

“There is something suspicious about the whole process when there isn’t even a report put out to the public,” interim Progressive Conservative Leader Jim Wilson said Monday. “I think the government should be held accountable.”

Wilson’s comments come after a Star investigation into a complaint against a Toronto judge who had been repeatedly admonished, and the system that keeps the vast majority of such complaints under lock and key.

Confidential documents, provided to the Star by an unknown source, detailed how the complaint was handled in secret, and the case closed.

According to the Ontario Judicial Council, which probes complaints against judges, there is a “general order,” permitted under Ontario law, banning the publication of any documents and information relating to complaints that don’t result in a public hearing.

The rest of the Toronto Star story HERE

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

Toronto Star: Broken Trust: Two Faces of Justice

Posted to the Toronto Star website

Former lawyer Lawrence Burns runs a North Toronto restaurant. He is also a disbarred lawyer found to have taken close to half a million dollars from his clients. Burns, like many lawyers caught with his hand in a trust account, escaped criminal prosecution. A Toronto Star investigation found most Canadian law societies report members to police. The Law Society of Upper Canada does not.

They treat client trust accounts as their personal piggy banks, facilitate multi-million-dollar frauds and drain retirement savings of the elderly.

While most lawyers caught stealing from their clients are reprimanded, suspended or disbarred by the profession’s regulator, the vast majority avoid criminal charges, a Star investigation reveals.

The Star found that more than 230 lawyers sanctioned for criminal-like activity by the Law Society of Upper Canada in the last decade, stole, defrauded or diverted some $61 million held in trust funds for clients.

Fewer than one in five were charged criminally. Most avoided jail.

“I truly believe there are two laws — a set of rules and regulations for lawyers and a different set for everyone else,” said Richard Bikowski, who was fleeced out of $87,500 by now-disbarred Toronto lawyer Lawrence Burns.

Unlike the law societies in most other provinces, the Law Society of Upper Canada does not, as a rule, report suspected criminal acts by its members to police, no matter how much money lawyers steal.

For the full story, go to the Toronto Star website

Lawyers urged to embrace in-house ethics counsel

Posted to Law Times, January 27, 2014

Law Times article mentions Stephen Pitel’s (Western) comments on in-house ethics counsel, and Amy Salyzyn’s (Ottawa, Yale) comments on regulating law firms.  Comments were made at the recent Conference on Ethical Issues in the Law Firm Setting held by the University of Toronto Program on Ethics in Law and Business.

For the full story, click HERE.


S Fine: The new face of judicial defiance


KITCHENER, ONT. — The Globe and Mail

PublishedFriday, Dec. 13 2013, 10:46 PM EST

Last updatedFriday, Dec. 13 2013, 10:46 PM EST

Justice Colin Westman still remembers when, as a young lawyer who had barely outgrown a pampered childhood in Shawinigan, Que., he first read the pre-sentence reports that contain the life stories of convicted men and women.

“It was like fiction,” the 70-year-old father of two tells a reporter in his Kitchener, Ont., office during a morning break from court. “I couldn’t believe the tragic backgrounds of some of these people. From the day they were born, they were behind the eight-ball.”

Today, after more than two decades of seeing a steady procession of those people, whom he calls broken souls, in his courtroom, Justice Westman has become one of many in several provinces defying the spirit, and sometimes the letter, of the Conservative government’s tough-on-crime agenda. Continue reading

R Mendleson: Javad Heydary case prompts questions about law society’s policy of secrecy

Rachel Mendleson

Toronto Star, published December 16, 2013

Embattled Toronto lawyer Javad Heydary has never before faced disciplinary action from the Law Society of Upper Canada, but it is impossible to know whether he has been the subject of previous investigations, because the regulator does not disclose that information.

That would not be the case if Heydary, who fled the country in November amid allegations that more than $3 million in trust funds was missing, had practised in Oregon. In that state, a list of every complaint lodged against lawyers, subsequent investigations and the outcome of those probes is only a phone call away for clients, journalists or anyone else who wants to know.

For the complete story on the Toronto Star website, click HERE.

Continue reading

A Salyzyn and A Woolley receive OBA Fellowships in Legal Ethics and Professionalism

The 2013-14 OBA Foundation Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism have been awarded to Professor Alice Woolley of the University of Calgary Faculty of Law (Fellowship in Research) and Amy Salyzyn, a graduate student at Yale University Law School (Fellowship in Studies).

Professor Woolley’s research project will consider the significance of the lawyer’s status as a fiduciary in defining the lawyer’s duties, in particular duties of loyalty and confidentiality.

Amy Salyzyn’s project will study the ethical implications of lawyers’ pre-litigation demand letters.

The OBA Foundation, the charitable arm of the Ontario Bar Association, administers the fellowships.  The Fellowship in Research is a grant of $15,000, awarded annually to full-time teachers at a Canadian university or college.  The Fellowship in Studies, a grant of $5,000, is awarded to OBA members who are not eligible for the Fellowship in Research.

Media inquiries contact: Lee Akazaki


The 2013 Selection Committee for the Fellowships consisted of two members of the practicing bar, Susannah Roth (Sullivan Estate Lawyers) and Jacqueline King (Shibley Righton LLP); and two members of the legal academy, Douglas Ferguson (University of Western Ontario) and Adam Dodek (University of Ottawa).  The Fellowship is administered by OBA Foundation Trustee Lee Akazaki (Gilbertson Davis Emerson LLP).

The OBA Foundation is the charitable arm of the Ontario Bar Association.  It raises funds for the advancement of education and the encouragement of research related to the efficacy, understanding and application of the law and legal processes, as well as the improvement of the justice system.  Established in 1987, it was previously known as the Advancement of Legal Education and Research Trust (ALERT).

The OBA Foundation is a registered charity and may issue charitable receipts.



M Love: Donation to charity gets Manitoba Crown fired

Myron Love posted the story on Legal Feeds (the blog of Canadian Lawyer and Law Times), posted July 16, 2013

t may be a case that is unique in legal annals in Canada.

Sean Brennan, a Manitoba Crown prosecutor since 2000, was fired in early July after he reported a situation in which a leading Winnipeg aerospace company made a substantial donation to a charity dear to Brennan’s heart at about the same time that Brennan dropped charges against the company charged with failing to follow required safety guidelines — which resulted in a workplace accident.

“It’s an unusual case,” says Allan Fineblit, CEO of the Law Society of Manitoba. “This was not a situation where the lawyer personally benefitted. The money went to a good cause.”

Professor Arthur Schafer, director of the Centre for Professional and Applied Ethics at the University of Manitoba, however doesn’t see Brennan’s actions as differing substantially from any other “garden variety” conflict-of-interest situation despite the former prosecutor not gaining anything personally.

For the rest of the story on Law Feeds, click HERE.

T Taddese: Defence counsel not alter egos of clients: judge

Posted on the Law Times June 3, 2013.

Yamri Taddese has an interesting piece on the Law Times website on the discussion in R v Faulkner that considers the relationship between client and solicitor.  Taddese’s analysis of Justice Michael Code’s judgment highlights the way in which “[t]he lawyer erred in thinking she had to get a green light from Faulkner before making every move”.

For the full article and link to the decision, click HERE