An innovative class-action
settlement has handed Canada’s
law foundations a $14.6-million
windfall that will be used to
improve access to justice.
The money—part of a
$55-million settlement between
the Toronto-Dominion Bank and
its credit card holders—comes
at a time when record-low interest rates have slashed the funds
available to foundations to support law-related projects.
“There are a lot of non-profit
organizations working on the
front lines of rural communities,
Foundation of
Ontario, which
will oversee distribution of the
money across
Canada.
“It has been
a challenging
time for the law foundations…
this fund provides an opportunity for the continued funding of
both ongoing projects and new
projects that might not other-
Lee
wise have been possible.”
The foundation has set up a
special Access to Justice Fund
and will allot the money based
on the geographical distribution
of the plaintiffs in the class-
action suit.
The most populous prov-
inces—Ontario, British Colum-
bia, Quebec and Ontario—are
entitled to the bulk of the fund-
groundbreaking,” she added.
“You can compensate class members $10 or $15 or
$20 a pop, but for social value and significance, it
really doesn’t accomplish much. But if you give
money to charity where you can really help…
that’s as good as it gets.
ing, “but each province does have
plaintiffs who live there,” says
Ayumi Bailly, the Ontario foundation’s director of policy and
programs.
Lee, director of the Access to
Justice Fund project, says it’s
the first time Canadian law
foundations, which earn income
from the interest charged to
lawyers’ trust accounts, have
received a cy pres award—
money impossible to distribute
to its rightful recipient. “It’s
CONTENTS
NEWS
THE SUPREME Court recognizes
“journalist-confidential source”
privilege........................................ 1
EMERGENCY INTERIM
management rescues clients
in crisis....................................... 13
THE FIRST “strategic lawsuit
against public participation” ruling
comes down in Canada................ 1
Immigration
INDIVIDUALS WRONGFULLY
accused of terrorism receive little
redress ....................................... 15
THE LAW Foundation of Ontario
gets a big class action settlement
fund to divvy up ...........................2
CANADA’S NEW visa application
program for Mexican business
travellers needs work................. 15
LAWYER/SINGER hits all the right
notes ............................................ 4
THE CBA finds the new refugee
reform law alarming ................... 15
OPINION
BUSINESS & CAREERS
JEFFREY MILLER....................... 5
SÉBAS TIEN GRAMMOND ......... 5
CONTINUING LEGAL education
market heats up......................... 22
JAY BRECHER........................... 7 USE PREVENTATIVE law more... 23
FOCUS
NETBOOKS CAN be useful tool
for lawyers.............................. 25
claimed they were charged
unauthorized fees when they
made foreign-currency transactions.
Only 1. 1 million cardholders
could be identified and compensated, with each receiving a
payment of $11.23 or $8.66.
After deducting legal fees and
disbursements totaling $11 million (based on retainer agreements giving counsel 20 per
cent of the gross recovery),
about $29 million was available
as a cy pres award.
The bank and the plaintiffs
agreed to divide the award and
donate it to charity, with the
bank’s portion
going to a non-profit group,
Social and
Enterprise
Development
Innovations, to
fund programs
to improve the
financial knowledge and money-management
skills of the poor and underprivileged.
Paul Pape of Pape Barristers
Professional Corporation in
Toronto, one of the lawyers for
the plaintiffs, says the original
idea was to donate the other
half of the award to law schools,
to be used to improve the professionalism and ethical training of law students.
The goal was “to make better
Pape
lawyers,” Pape told The Lawyers
Weekly, but Justice Maurice Cullity, who oversaw the settlement,
rejected the idea. “He didn’t like
the optics” of appearing to be
“helping lawyers help lawyers
make more money,” says Pape.
Justice Cullity suggested
Ontario’s law foundation as the
vehicle to hold the money in
trust, specifying in his ruling
that the funds be used “for the
purposes of advancing public
access to justice in Canada.” He
made it clear that the money is
not to be used to fund Ontario’s
legal aid system, which already
receives funding from the foundation.
Pape says the plaintiffs fully
supported the judge’s option.
“You can compensate class mem-
bers $10 or $15 or $20 a pop,
but for social value and signifi-
cance, it really doesn’t accom-
plish much. But if you give
money to charity where you can
really help people who could
otherwise not help themselves…
that’s as good as it gets.”
Law foundations, which oper-
ate in every province and terri-
tory and fund an array of law-
related programs and
community groups, are a logical
choice to handle distribution of
the money, he said. “They have
the structure. This is what they
do for a living.”
Lee says the money will be
targeted to five areas—access to
justice for linguistic commun-
ities and in rural and remote
areas; aboriginal access to jus-
tice; self-help; family violence;
and consumer rights.
An example of a program
likely to qualify for funding, says
Lee, is an Ontario initiative to
bring legal information and
advice to people in ethnic communities, which this year will
hire articling students fluent in
Tamil, Mandarin, Cantonese,
Spanish and Arabic.
Ayumi Bailly says the fund is
open to any project that fits
within these broad categories.
“We want to maintain the flex-
ibility to receive any innovative
proposal under any of those
themes.”
The Ontario foundation is
consulting with foundations in
See Cy Pres Page 7
The Harper government should not
move ahead with a proposal to enact
random roadside sobriety testing, but
if it does, the government should first
seek constitutional clearance from the
Supreme Court, urges the Canadian
Bar Association (CBA).
“We strongly urge avoiding the
proposals…that would begin on a
path of eroding established and
important constitutional protections,”
the 37,000-member association
argues in a May 7 written response
to Justice Canada’s discussion paper
on “Modernizing the Transportation
Provisions of the Criminal Code.”
The government unveiled the
paper last February as part of its con-
sultation on a planned overhaul of the
country’s impaired driving laws. The
CBA contends police already enjoy
“adequate power” because they can
administer breath tests based on
mere “reasonable suspicion” that a
driver has been drinking. What police
need is more money to put officers
on the roads, the group suggests.
Pardon me?
Public Safety Minister Vic Toews
set off a storm of controversy when
he suggested that the offence of
“rape” —defunct since
1983— should perhaps be restored
to the Criminal Code. The ex-prosecu-tor and former attorney general told
reporters that the current catchall
crime of “sexual assault” — which
encompasses very serious and less
serious misconduct — is “a curtain
that some hide under.” He made the
observation May 11 as he tabled the
Eliminating Pardons for Serious Crimes
Act. Bill C- 23 would replace “
pardons” with “record suspensions”; bar
persons convicted of sexual offences
against minors and those convicted
of more than three indictable offences
from record suspensions; and boost
the period of ineligibility for a record
suspension to five years from three
for summary conviction offences, and
to ten years from five for indictable
offences. The National Parole Board
would be asked to consider whether
suspending an offender’s record
would bring the administration of justice into disrepute.
Ontario online
Labour & Employment
HOW TO win damages for bad
faith conduct by employers.......... 9
PARTNER LOSES appeal over
compensation ............................ 25
NEW RULES on summary
judgment benefit wrongfully
dismissed employees................... 9
DEPARTMENTS
TWO RULINGS on overtime
class action certifications can’t
be reconciled ......................... 10
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THE CORRECTIONS Ministry fails
to protect a gay jail guard .......... 11
Careers . . . . . . . . . . . . . . . . . 23
Classified Ads . . . . . . . . . . . . 21
Lawddities. . . . . . . . . . . . . . . 17
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Names in the News. . . . . . . . . 4
Weekly Digest. . . . . . . . . . . . 19
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Ontario has launched an interactive
website this month to assist
Ontarians to fill out 11 of the most
commonly-used family and civil court
forms. The new Ontario Court Forms
Assistant will make it easier to: get a
restraining order; apply for child custody or change a child support order,
and; start a case in family court or
respond to a family law claim.
The government has also started
scheduling mandatory information
sessions, and dispute resolution officer meetings, to help people experiencing separation or divorce understand the human effects, as well as
alternatives to litigation.
