The Lawyers Weekly - September 17, 2010

Billions of dollars invested, not a penny lost.

Vol. 30, No. 18

www.lawyersweekly.ca

September 17, 2010

Highlights
DEFENDING THE JUDICIARY
LUIS MILLAN MONTREAL
ARBITRATION HUB

PAGE 3

SEEKING TRUTH

Quebec’s top court nixes access to English schools

Toronto aims to become a global player in this burgeoning area

In a ruling that deftly circumvented the politically sensitive issue surrounding Quebec’s controversial language law while underlining the need to respect the “boundaries” established by the nation’s highest court, the Quebec Court of Appeal overturned a lower court judgment that would have temporarily allowed ten private-school students to pursue their studies at English-language schools.

In an 11-page ruling rendered just two days after the Quebec Superior Court granted a safeguard order that allowed the children of nine families to attend government-subsidized English schools until an administrative tribunal ruled on whether they have the right to do so, Appeal Court Justice Pierre Dalphond held that granting the students an exemption would not be in the public interest because it could lead to “serious problems” on the eve of the new school year.

The students had been attending unsubsidized, English private elementary schools and wanted to stay at the same institutions for high school. But since the schools are subsidized at the high school level, the students needed English eligibility certificates to keep studying there.

The parents sought English school eligibility certificates three years ago, but were turned down under provisions of Bill 104 (An Act to amend the Charter of the French language), which was passed in 2002 to close down a loophole that enabled parents who sent their children to unsubsidized private English schools for short periods to subsequently register them in Quebec’s public English-language system. The parents appealed to the Administrative Tribunal of Québec, but were denied a hearing because Bill 104 was being contested

See English Page 28

WINNIPEG: Manitoba Bar Association president Ken Mandzuik condemns the CBC for its “salacious” story about
Manitoba Court of Queen’s Bench (Family Division) Associate Chief Justice Lori Douglas.
TREVOR HAGAN FOR THE LAWYERS WEEKLY

See story on page 5

The dark art of
cross-examination
PAGE 9

‘Hardball’ auto insurer hit with

NEW MEDIA

$40,000 ‘remedial costs penalty’

Why Internet providers
aren’t broadcasters — yet
PAGE 14

ENERGY

CRISTIN SCHMITZ OTTAWA

Auto insurers in Ontario who refuse to participate in mandatory mediation—or who flout their companion statutory obligation to try to speedily settle a case — face “significant remedial costs penalties,” warns the Ontario Court of Appeal.

On Aug. 31, the appeal court slapped auto insurer Aviva Canada with paying an additional $40,000 of Glen and Heather Keam’s legal costs, on top of the partial indemnity costs of $110,000 the plaintiffs were awarded last year after an 11-day jury trial in 2008.

The Court of Appeal’s award of a $40,000 “remedial penalty” increases the plaintiffs’ costs recovery by a hefty 36 per cent, and sends a strong message to insurers that they risk serious financial consequences if they

“Although the insurer’s
conduct may not have
risen to the level
required for the
imposition of
substantial indemnity
costs,…a significant
remedial penalty was
required in all the
circumstances…
the decision
marks the first
time that a
court has
imposed a costs
penalty on an
auto insurer for
breaching its
statutory duty
to mediate.
Commenting that Aviva
played “hard ball” with the plain-
tiffs, Justices Marc Rosenberg,
Stephen Goudge and Kathryn
Feldman held that “although the
insurer’s conduct may not have
risen to the level required for the
imposition of substantial indem-
nity costs,…a significant remed-
ial penalty was required in all
the circumstances…to reflect the
censure of the court and to pro-
vide an appropriately significant
recovery for the appellants.”
Hatfield said some Ontario
insurers have been refusing to
See Keam Page 27
Hatfield

Keeping your energy
up at the office
PAGE 21
SELF-PROMOTION
How to promote
yourself effectively
PAGE 22

fail to meet their statutory duty to mediate under s. 258.6(1) of the Insurance Act, says the Keams’ counsel, Lawrence Hatfield of Flaherty Sloan Hatfield in Hamilton, Ont.

Hatfield told The Lawyers
Weekly that, so far as he knows,

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