The Lawyers Weekly - June 25, 2010

The Barreau du Québec and the Chambre des notaires du Québec failed in its bid to obtain a declaratory judgment and an injunction against the provincial tax authority after the Quebec Court of Appeal ruled that civil servants who analyze, prepare and render decisions by interpreting and applying legislation are not illegally practising law but rather acting on behalf of ministers.

In a ruling that highlights the difference between enforcing laws by an administrative authority and performing legal analysis, the Court of Appeal found that civil servants who examine, analyze and make decisions on objections filed by taxpayers contesting notices of assessment or notice of determination are “ administrative decision-makers” who apply facts to a case by following ministerial guidelines and interpretation bulletins composed by lawyers and notaries.

“The importance behind this
ruling is that it confirms that a
civil servant—no matter in what
sphere of government activ-
ity— who renders decisions, even
if it involves enforcing or apply-
ing the law, does not need to be a
lawyer or notary,” observed
Marie-Josée Corriveau, who
unsuccessfully represented both
law societies.

The RCMP would face closer civilian scrutiny under a bill tabled in the Commons June 14 by Public Safety Minister Vic Toews.

Bill C-38 would replace the $5.2 million-per-year RCMP Public Complaints Commission with a beefed-up RCMP Police Review and Complaints Commission with an annual budget of $10.2 million.

The new civilian watchdog would have greater powers to review and report on the RCMP’s activities, members and agents. It would get broad access to RCMP information (except cabinet confidences) and stronger investigative powers, such as the authority to summon and compel the appearance of persons and the production of evidence and materials for all complaint investigations and hearings.

The new complaints system would permit complainants to inform the commission about the impact of the alleged police misconduct

Complainants would be entitled to receive regular updates on the progress of investigations.

Back from the dead

CONTENTS

NEWS

CONTROVERSIAL COPYRIGHT Act reforms will be a boon for the legal “industry” .....................................1

WHY DISCOVERY plans add unnecessary complications .......... 9

Former Green party candidate loses

WHEN DO plaintiffs have ‘control’ over non-party documents?........ 10

defamation suit against Green party

THE SUPREME Court upholds mandatory publication bans on bail hearings .......................................1

COURTS FAVOUR substance over procedure when ordering defence medicals..................................... 10

GARY OAKES VICTORIA

CIVIL SERVANTS who make certain tax determinations need not be lawyers, says the Quebec Court of Appeal............................2

APPLYING ALBERTA’S minor injury regulation ................................... 13

A FORMER Green party candidate loses a defamation suit against the Green party ..................................2

Wills, Estates, Charities & Trusts INTIMATE RELATIONS in nursing homes ........................................ 15

First-time non-violent offenders would no longer be eligible for day parole after serving one-sixth of their sentence, nor be entitled to automatic full parole at one-third of their sentence, under legislation introduced by the Harper government June 15.

Bill C-39 revives aspects of a bill first tabled last October, which died when the government prorogued Parliament. The proposed Ending Early Release for Criminals and Increasing Offender Accountability Act

would eliminate accelerated parole review; clarify that the protection of society is the paramount consideration for the Correctional Service of Canada and parole boards; add intimidation, false claims and throwing a bodily substance to disciplinary offences within the prison system; entitle victims to make statements at parole hearings, be told where offenders are jailed or transferred and receive information about the offender’s participation in programs.

THE SUPREME Court of Canada has expanded administrative boards’ Charter powers................ 3

TAX SHELTER promoter faces civil liability ........................................ 15

HOW CHARITIES can avoid unacceptable gifts...................... 16

Free at last

THE ONTARIO Securities Commission should take a leadership role in corporate social disclosure, says a new report ...... 3

BUSINESS & CAREERS

FASHION AT the office.............. 22

A man who was rejected as a Green Party candidate in the 2008 federal election for allegedly making anti-Semitic comments has lost his defamation suit because of an absence of malice and the fact the defendants successfully advanced the new defence of responsible communication.

Chris Rootham, counsel for
the party, told The Lawyers
Weekly that “it’s an important
decision because it recognizes
that the defence of responsible
communication applies to all
individuals and organizations,
not just to journalists.”
Justice Carol Ross noted that
John Shavluk joined the party
after learning it endorsed the
legalization of marijuana, an
issue for which he was “a pas-
sionate advocate…”
In pursuit of that goal he had
made numerous postings on vari-
ous Internet discussion forums.

LAWYER GOES to great heights (twice) for charity ........................ 4

MANAGING YOUR online brand..., reputation takes work ................ 22

GET ON headhunters’ radar ....... 23

OPINION

DEPARTMENTS ANITA ANAND.......................... 5

FOCUS

Personal Injury NOVA SCOTIA triples the auto insurance cap............................... 9

Careers . . . . . . . . . . . . . . . . . 23

Classified Ads . . . . . . . . . . . . 21

Lawddities. . . . . . . . . . . . . . . 11

Legal Briefs. . . . . . . . . . . . . . .2

Names in the News. . . . . . . . . 4

Weekly Digest. . . . . . . . . . . . 18

RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS

PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D. BRAN T LATHAM, B. A.SC. B.SC. (CHEM. ENG.), LL.B. DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B.

JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B. BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.

TRADE MARK AGENTS LEONARD GROVE (1930-2006)

MARTA TANDORI CHENG

2 BLOOR ST. EAST, SUITE 1800

TORONTO, ONTARIO M4W 3J5

TELEPHONE: (416) 961-5000

FAX: (416) 961-5081

E-MAIL: riches@patents-toronto.com ESTABLISHED 1887

As of Aug. 31, lawyers and the public will once again be able to search B.C. criminal and traffic court records for free online.

Attorney General Mike de Jong announced June 14 that the government is revoking the $6 fee on searches it imposed Jan. 4. The charge will remain for online searches of civil files.

The about-face came after legal aid lawyers complained they were finding it was costly and cumbersome to access charges, release information and appearance history.