Features

2 Jul 2014

Truth & Consequences: Whistleblowing legislation raises thorny issues

When Edgar Schmidt launched an atypical lawsuit against the Attorney-General of Canada accusing Ottawa of circumventing a legal requirement to properly review the constitutionality of draft legislation, the soft-spoken lawyer was prepared to pay the price for revealing a long-standing practice that strikes at the heart of the federal legislative process.

The riposte was swift. The day after the 61-year old senior lawyer of the federal Department of Justice filed his claim before the Federal Court of Canada in December 2012, he was suspended without pay. Schmidt would have preferred to keep working, but is now retired and living on a reduced pension. While disappointed with the “vengeful attitude” displayed by his former employer and the snub he has felt by some former colleagues, he has no regrets over his actions. “Quite frankly, I don’t think there was anything wrong with I did,” says the former general counsel of the Legislative Services Branch, the group responsible for drafting and examining bills and regulations. “There is nothing wrong in seeking to uphold the rule of law. There is nothing wrong in seeking the court to clarify one’s instructions when the instructions one is getting seems in conflict with the law.”

Schmidt joins a growing list of Canadian whistleblowers who quickly discover that disclosing potential wrongdoing in the workplace almost always leaves them vulnerable. Schmidt’s court case raises thorny issues over the nature of the professional responsibilities and ethical obligations of government lawyers. But it also underscores the tension that exists between the duty of loyalty an employee owes to his employer, freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms, and federal and provincial whistleblowing legislation that aims to protect whistleblowers from retribution by their employers.

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Categories: Canadian Charter, Employment & labour law, Features, Federal Court of Canada, Supreme Court of Canada

Tags: Edgar Schmidt, Federal Accountability Initiative for Reform (FAIR), Public Sector Integrity Commissioner, Public Servant Disclosure Protection Act, Whistleblowers
16 Jan 2014

Revenue Quebec ordered to pay $2 million in punitive damages

A Montreal businessman who was forced to shut down his business after Quebec tax authorities mishandled his case was awarded nearly $4 million, including a staggering $2 million in punitive damages, following a precedent-setting ruling by Quebec Superior Court.

In an extremely harsh judgment that sheds light on Revenue Quebec’s tax collection policies and questions its administrative practices, Justice Steve Reimnitz held that the provincial tax agency abused its powers, acted maliciously and in bad faith, and exhibited unjustified and blameworthy administrative doggedness in the way it handled the tax file of Groupe Enico Inc. and its founder Jean-Yves Archambault. The comprehensive 197-page ruling in Groupe Enico inc. c. Agence du revenu du Québec 2013 QCCS 5189 details a series of bizarre and improbable events, triggered by a dishonest auditor, that has been likened by Quebec tax lawyers to an absurd “horror story” that “was bound to happen.”

“There have not been many decisions that have been rendered by the courts where Revenue Quebec has been sued for damages,” pointed out Alexandre Dufresne, a Montreal tax lawyer and managing partner of Spiegel Sohmer. “Not only that, Revenue Quebec lost and the damages were very substantial so in that sense it is a very important decision. The judgment outlines what I would call a horror story – it really was an abusive audit.”

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Categories: Accounting, Business, Features, Quebec, Quebec Superior Court, Rulings, Tax

Tags: Enico, punitive damages, Revenue Quebec
29 Jun 2013

Tug of war – Canadian labour under seige

When the final tally was counted, the labour movement could be forgiven for heaving a sigh of relief. The Senate this week amended, some say eviscerated, legislation passed by the House of Commons that would have given organized labour another sound reason to believe it is under siege.

This time the Conservative government would have under the auspices of accountability and transparency forced unions to disclose financial information to tax authorities. Other entities that too receive favourable tax treatment were inexplicably exempted from the disclosure obligations. Organized labour could be forgiven for feeling that its capacity to flex its muscle is being thwarted as it helplessly watches the federal government trying to systematically strip elements that once made it a force.

Provincial governments across the country too are following suit. Many have enacted legal obstacles to make life difficult for labour. “It’s the age of conservatism,” told me Ronald Pink of Pink Larkin, a law firm from the Atlantic Canada that actually boasts it pays heed to social justice. “We are turning back the clock 50 years on things we fought to achieve.”

Others see matters differently.

What follows is a look at legal developments that could shape the Canadian labour landscape for years to come.

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Categories: Business, Canada, Employment & labour law, Features

Tags: Bill C-377, Mounted Police Association of Ontario, Organized labour, Rand formula, right-to-work
11 Jun 2013

Workplace privacy: “People don’t understand it”

Workplace privacy, an issue few seriously thought about even a decade ago, has become a conundrum for employers. The ubiquitous presence of mobile technology, the explosive evolution of social media coupled with shifting and seemingly contradictory attitudes towards privacy as well as an evolving legal landscape have left in-house counsel in a quandary. Even outside of work, questions linger around the scope of employee privacy and the extent to which employers can keep tabs on employees.

No wonder then when Borden Ladner Gervais LLP recently ran a seminar on workplace privacy in Toronto in the wake of a much publicized Supreme Court of Canada ruling that has divided privacy lawyers over its significance, the turnout out was nearly twice as much as expected.

“Privacy is on people’s minds,” says Robert Weir, an employment lawyer who led the seminar. “People don’t understand it, don’t get it.”

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Categories: Business, Canada, Canadian Charter, Features, Legal Practice Management, Privacy, Supreme Court of Canada

Tags: Privacy, right to privacy, workplace privacy
10 May 2013

Misappropriation of funds: The profession’s dirty little secret

On an unusually warm and foggy Saturday evening this past December the $1.7-million home of Dany Perras was set ablaze, the third time in the space of a year an act of vandalism targeted the former Montreal lawyer. Perras, who resigned abruptly from the roll in October 2011, is under investigation by the Quebec Bar for allegedly orchestrated a multi-million dollar Ponzi scheme through his lawyers’ trust account. It’s been more than 16 months since the scandal that shook the Montreal legal community erupted, and the fallout is still being felt. Successfully petitioned into bankruptcy, Perras is the subject of an ongoing criminal probe and a host of legal proceedings – many of which are under court seal — launched by more than a dozen creditors seeking an amount surpassing $6 million.

The Perras case is unique, and yet at the same time it is not.

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Categories: Disciplinary law, Features, Legal business, Legal Practice Management, White-collar crimes

Tags: defalcation, misappropriation, professional liability insurance
10 Jul 2012

A sad reminder that friendship and business do not always mix

“This case is a sad reminder that friendship and business do not always mix.” So begins a lengthy ruling by Quebec Superior Court Justice Geneviéve Marcotte recounting the sombre saga of a successful Montreal businessman, a former corporate lawyer and his wife.

It is a story about a friendship that turned so sour that Justice Marcotte ordered Earl Takefman, formerly chief executive officer of a number of public companies, to pay Montreal lawyer Elliot Bier and his wife $20,000 each in moral damages, $25,000 each in punitive damages and nearly $42,000 in extra-judicial fees incurred by the couple in the proceedings, together with legal interest.

What’s more, Takefman has been ordered to cease and desist from communicating to the Biers or to third parties directly or indirectly in writing, including electronic communications such as emails and text messages, any details on the private life, the assets and property of Elliot and Dawna Bier and their financial situation, save and except to his legal counsel and staff.

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Categories: Features, Quebec Superior Court, Rulings

Tags: Earl Takefman, Elliot Bier
16 Jun 2012

Open data: The value of openness

When Bing Thom Architects set out to investigate the effects of rising sea levels in Vancouver, the firm decided to gather crucial information about the shoreline from the city’s open data web portal. The study ultimately painted a sobering view of the potential impact of climate change: more than $25-billion in Vancouver real estate would be “negatively affected” by a rise in the sea level in the 21st century, excluding infrastructure such as roads, sewers, and electrical facilities. But the research also underscored the value of open government data: information that is collected by government for its own purpose and made available to the public for its own use.

Open data is essentially information that is free for anyone to use, reuse and redistribute. Proponents of making government data available to the public identify two main benefits: First, innovators of all kinds can use the information to build useful applications and services, and second, it promotes government transparency and accountability and encourages citizen participation in public policy debates. As Andy Yan, the urban planner involved in the Vancouver project observes, “when you have this type of transparency and governments release their databases to the public, you can have these kinds of discussions about public policy out in the open instead of being captured in little clubhouses.”

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Categories: Access to justice, Features, Intellectual property, Internet

Tags: open data, open government, personal data, Privacy
12 Nov 2011

Class action legal landscape in Canada is maturing

Class action lawsuits appear to be an increasingly pervasive force in today’s business world, with organizations of all stripes, from top publicly-traded companies to small regional enterprises, looking over their shoulders, anxiously watching an ever-evolving legal landscape to see where things are heading next.

And it’s not necessarily looking good as recent rulings appear to be favouring consumers, and not companies.When a deeply divided Supreme Court of Canada recently held that disgruntled customers in British Columbia can launch class action proceedings even though the fine print of their contracts calls for disputes to be settled through private and confidential mediation and arbitration, it seemed that the long-awaited decision in Seidel v. TELUS Communications Inc. 2011 SCC 15 was but the latest in a growing line of cases that highlights the growing exposure Corporate Canada faces over class action proceedings. (more…)

Categories: Business, Class actions, Features

Tags: class actions, Dobbie v. Arctic Glacier Income Fund, Silver v. Imax
31 Jan 2011

Law firms coming to grips with retirement issues

The figures are stark. It is estimated that nearly 70 per cent of law firm partners are “baby boomers,” according to Hildebrandt International, an international legal consulting firm. In the United States, the latest figures reveal that approximately 400,000 lawyers will reach retirement age at some point within the next decade. Nearly a third of California’s 170,000 active attorneys are older than 55, and 21 per cent older than 60. Closer to home, 8,284 of its 22,500 members are over the age of 50, according to the latest figures from the Barreau du Québec. In Ontario, a startling 42 per cent of lawyer licensees, for a total of 17,850, are over the age of 50, reveals a demographic breakdown from the Law Society of Upper Canada.

Yet though the median age in the profession has increased, with the youngest baby boomers expecting to reach the mid-50s and the oldest the early 70s by the year 2018, Canadian law firms are seemingly struggling to come to grips with the changing demographics and are slow, if not reluctant, to deal with retirement as a major firm issue, assert legal industry observers.

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Categories: Employment & labour law, Features, Legal Practice Management

Tags: law firm partners, mandatory retirement, retirement