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A SUPPLEMENT TO DECEMBER 2011 C NWMRS E S kE ASS E N 2011 E S W ntitled-2 1 $4.00 • Vol. 22, No. 33 7/7/11 9:10:05 AM Inside This Issue 4 Extreme Delay 6 Polite Affair 8 Focus On Trusts & Estates Law Quote of the week A THE TOP NEWS, NEWSMAKERS AND CASES Billions of dollars invested, not a penny lost. ntitled-2 1 $4.00 • Vol. 22, No. 32 7/7/11 9:10:05 AM Covering Ontario's Legal Scene ntitled-3 1 Ruling overturning jury verdict upheld Rare case deals with judges' powers under Rule 52.08 ntitled-2 1 $4.00 • Vol. 22, No. 31 Inside This Issue BY KENDYL SEBESTA Law Times Covering Ontario's Legal Scene SCC nominations leave gap O verdict last year in a decision that marks the first time it has considered a case deal- ing with Rule 52.08 of the Rules of Civil Procedure in 11 years. The rule allowing that to happen arises T BY MICHAEL McKIERNAN Law Times ntario legal watchers are turning their attention to the province's Court of Appeal after the federal government raided that body to fill both of its Supreme Court of Canada vacancies last week. Justice Michael Moldaver was one of the longest-serving judges on the appeal court bench having been there since 1995, while Justice Andromache Karakatsanis spent 19 months there before making the step up to the country's top court. Joseph Neuberger, a criminal defence lawyer with Neuberger Rose LLP in To- ronto, says the Supreme Court will ben- efit from "two very strong candidates." He points to Karakatsanis' expertise in admin- istrative law and Moldaver's background in criminal matters, an area left particularly exposed on the top court bench following the departure of Justice Louise Charron. "Both are tough acts to follow for the Court of Appeal, and the government will titled-10 1 Attention turns to Ontario body as Moldaver, Karakatsanis leave very rarely at the Court of Appeal, a fact that Eberhard hinted at in her June 2010 judgment. "Indeed nothing could jangle more profoundly against the accustomed role of a trial judge sitting with a jury than to replace their findings with one's own view of the facts or set aside their verdict where there was some evidence to support it," she wrote in Salter v. Hirst. "This is so deeply ingrained in the administration of justice as we value it and the jury system as we respect it that a trial judge's disagreement with jury findings, however often or seldom it may occur, is never known." The central question raised in the Court of Appeal decision late last month focused on whether or not there was evidence to support the jury's findings and therefore sufficient grounds for the judge to overturn it. The case called into question whether Filling the gap at the appeal court 'becomes a really pressing job now,' says Joseph Neuberger. vacancies. The transfer of Karakatsanis will leave the appeal court with 22 judges, includ- there was proper evidence for the jury's findings that Dr. Jason Hirst was legally re- sponsible for causing George Salter's paraly- sis and that his actions contributed directly to it. It also raised the issue of whether Eber- hard was correct in using Rule 52.08 to issue 'While the robust and pragmatic approach may be taken to evidence of causation in certain cir- cumstances, as the courts have repeatedly con- firmed, it is not a substitute for evidence,' says Christopher Hubbard. a new verdict overturning the jury's findings against Hirst. 1,000 appeals and 1,000 motions each year, the Supreme Court heard just 65 appeals in "The authorities interpreting this rule con- firm that the trial judge is required to dismiss the action pursuant to Rule 52.08, despite the jury's verdict, where there is no evidence on an he Court of Appeal has reaffirmed Superior Court Justice Margaret Eberhard's move to overrule a jury Litigation Support Our cost effective service scans and indexes your documents into a quickly searchable database. Call us today, we can help! TF: 1.888.781.9083 www.docudavit.com October 24, 2011 11-08-31 2:53 P essential element of the plaintiff's claim," says lawyer Christopher Hubbard of McCarthy Tétrault LLP. "As a result, this rule may be invoked in any jury case in which there is no evidence on an essential element of the plain- tiff's claim. However, the nature and effect of the rule is only considered by the Court of Appeal if it is invoked at the trial stage and the issue is appealed." Hubbard, who represented Hirst, notes he expects the rule often arises at the tri- al stage but says this is the first time the Court of Appeal has considered a case dealing with it in 11 years. In Salter, the Court of Appeal found that while the reports of two experts dur- ing the trial had established that one of the doctors could have conducted surgery within the six-hour window of opportu- nity to prevent Salter's later paralysis, "the appellants led no evidence to show that the correct diagnosis likely would have been made and successful treatment likely would have been completed before the close of the window of opportunity had Mr. Salter been transferred earlier." The case raises important questions, ac- 5 Search Guidelines 6 Innovative Program 9 Focus On Litigation Quote of the week "The arbitration process breaks down when cording to Salter's lawyer. "The case is signifi- cant in that it begs the question: how far does a plaintiff have to go to prove causation?" says personal injury lawyer Adam Little. "The Court of Appeal, like the trial judge below, focused on the distinction between what would have happened had the patient been transferred earlier and what could have happened. The problem with that is it is impossible to prove people choose arbitrators who let counsel run the arbitration process like a private trial." — Joel Richler, Blake Cassels & Graydon LLP, See Arbitration, Page 13 October 17, 2011 5/4/10 2:49:21 PM 7/7/11 9:10:05 AM Inside This Issue 4 Billions of dolla not a penn Covering Ontario's Legal Scene ntitled-3 1 Octob Ont. lawyer defies Thai thre Robert Amsterdam seeking support following politician's Access Denied threats against him. A BY MICHAEL McKIERNAN Law Times Canadian international human rights lawyer is vowing to return to Thai- land despite a government official's In May, London, England-based Robert Amsterdam, who's also a member of the Law Society of Upper Canada, complained to the United Nations' special rapporteurs on the situation of human rights defenders and the independence of judges and lawyers after the deputy prime minister of Thailand threatened legal action for his representation of members of the country's political opposition. 6 Costs Award Then in August, the law society Treasurer Laurie Pawlitza wrote to Thailand's minister of justice urging him to monitor Amsterdam's situation and to "guarantee in all circumstanc- es his physical, psychological, and professional integrity in accordance with international hu- man rights standards and international instru- ments ratified by Thailand." 8 Focus On legal community's support. "What the law society has done in this case is important," Amsterdam tells Law Times in a phone inter- w from Washington. "It's important that our voices are heard on universal principles Amsterdam is grateful for the Ontario Insurance Law vieQuote of the week like human rights. "One of the things I never take for grant- ed is that we have a law society and we have the rule of law. We all tend to forget how precious that is. We who are at the bar actu- ally do share common values and beliefs, and Windsor students team up for local businesses "Litigation loans are more like credit card loans. I mostly discourage their use, but that is not to say that clients can't find these services on their own, so a lawyer should give them some advice." BY RON STANG For Law Times See Ruling, page 5 — Charles Gluckstein, Gluckstein & Associates LLP, See Court, page 13 WINDSOR, Ont. — In a once- fact its economy is wedded to the auto industry," says Myra Tawfik, acting dean of law and the centre's co-director. The cen- copyright, the law of confiden- tial commercial and personal in- formation, and trademarks. Her work also includes international Robert Amsterdam says his clients have been forced to leave Thailand to give him when you have the level of exposure that I do to countries where the rule of law is not alive, it just makes you extraordinarily grateful for colleagues who have taken this seriously." The co-founder of Amsterdam & Peroff LLP, which has offices in Toronto, London, and Washington, has made a name for him- self as a defender of human rights in coun- tries with spotty records on the subject. He has clients in places like Uzbekistan and Nigeria, where he represented Nasir El- Rufai, a former cabinet minister facing jail time, and Mallam Yusuf M another politician who claims tim of electoral fraud. In 2005, Amsterdam wa expelled from Russia while w defence of former oligarch M kovsky, who alleged there we tivations behind his prosecu and tax evasion. The courts ev Khodorkovsky guilty and sen 14 years in jail. S