Hansell
Continued From Page 5
to promote the integrity of the
system. Finally, even if issuers
and investors came to recognize
that problems exist (as they have
in the U.S.), we cannot attack the
problem because we can’t measure it or even define all aspects of
it. This is in part because much of
the information necessary to do
so is maintained by third party
service providers with a stake in
any review of the system.
Who should care about this
problem and why?
Investors who have paid for the
right to vote and may have devoted
considerable resources to casting
their vote should care that their
vote may not be recorded or may
not be given its full weight. Issuers
who need to secure shareholder
approval in connection with stock
option plans, shareholder rights
plans, bylaw amendments should
care that they may not be able to
reach their investors or record
their votes. Boards whose
approach to executive compensa-
tion is subject to “say on pay” votes
at shareholder meetings should
care about the same things. So
should individual directors whose
candidacy and performance is
scored through withhold votes in
the majority voting system. The
same applies to boards that have
not adopted majority voting,
because investors are just as
inclined to withhold from the full
slate. The Canadian Securities
Administrators and the TMX
Group should also care because of
Extent of the duty a point of debate
Rio
Continued From Page 1
knowledge of a potential aboriginal
claim or right; ( 2) contemplated
Crown conduct; and ( 3) the potential that the contemplated conduct
may adversely affect an aboriginal
claim or right.
For the second element,
McLachlin wrote that the
impugned government action does
not need to have an immediate
impact on lands and resources. “A
potential for adverse impact suf-
fices,” wrote McLachlin. “Thus the
duty to consult extends to ‘strategic,
higher level decisions’ that may
have an impact on aboriginal
claims and rights.”
LLP in Vancouver, who repre-
sented B.C. Hydro and Power
Authority in the case. “The
extent of the duty was subject to
controversy” after the Haida
decision, he noted. Instead of
consulting regarding historical
grievances, Sanderson said that
the court has now emphasized
that matters must be looked at
prospectively. Instead of looking
back, he said that the issue is
“does this new Crown decision
affect the future?
“
Consultation itself is not a question of law, but a
distinct constitutional process requiring powers to
effect compromise and do whatever is necessary
to achieve reconciliation of divergent Crown and
aboriginal interests.
However, for the third element relating to an adverse
effect, the court emphasized
that there must be a causal relationship between the proposed
government conduct or decision
and a potential for adverse
impacts. “Past wrongs,” wrote
McLachlin, “do not suffice.”
Likewise, she added, for “mere
speculative impacts.” The court
emphasized that the duty to
consult is limited to adverse
impacts flowing from the
specific Crown proposal at issue,
and not to larger adverse
impacts of the project of which
it is a part.
The court’s pronouncement
clarifies the limits of the duty to
consult, according to Chris
Sanderson, of Lawson Lundell
consult, the court next turned
its attention to the issue of what
role the British Columbia Util-
ities Commission has in consid-
ering the issue of consultation.
The court rejected a suggestion
that every tribunal with juris-
diction to consider questions of
law has a constitutional duty to
consider whether adequate con-
sultation has occurred and, if
not, to itself fulfill that require-
ment. Instead, the court said
that a tribunal has only those
powers that are conferred on it
by statute.
Reasons: Rio Tinto Alcan Inc. v. Carrier
Sekani Tribal Council, [2010] S.C.J. No. 43.
the impact that a lack of confidence in the shareholder voting
system could have on investor confidence.
It is time for the capital mar-
kets community in Canada to
address the flaws in the proxy
voting system that strain the
credibility of the results of the
shareholder vote. Davies has
devoted the last 18 months and
considerable resources to
researching and explaining the
proxy voting system in a paper
entitled “The Quality of the
Shareholder Vote in Canada.” We
invite anyone with an interest in
this issue to promote a better
market understanding of the
issues by reading the paper and
providing us with their com-
ments.It is available at www.
shareholdervoting.com.
Carol Hansell is a senior
partner at Davies Ward Phillips &
Vineberg LLP in Toronto and the
Chair of the Corporate Governance
Committee of the American Bar
Association.
Report contained update on
practice management helpline
Standards
Continued From Page 1
receipts (58 per cent).
Noting that the type of man-
agement deficiencies found in
paralegal practices was similar
to those found in practice
reviews of lawyer firms, the
report said the major difference
was “in the extent of failure in
each of the categories where
paralegal practices have failed
to meet minimum competency
standards.”
The report noted that in Nov-
ember 2008, in implementing an
audit program for paralegals,
Convocation approved 75 practice
audits per year, but because of the
high percentage of revisits
required, the total number of aud-
its was increased to 125 per year,
including at least 75 original visits
and up to 50 additional revisits.
“This ensures that an appro-
priate number of new paralegal
practices are audited annually,”
the report said, noting that cur-
rently, “54 per cent of paralegal
practices require a revisit due to
failure to meet minimum stan-
dards of practice.”
The same report contained
an update on the law society’s
Practice Management Helpline.
In the first half of 2010 the
helpline received 3,739 calls,
for an average of 534 per
month. Of the 3,739 calls
received, 2,705 (72 per cent)
were handled by department
staff, meaning the question
could be answered by a non-lawyer, and the balance by
counsel, meaning an interpretation of the Rules of Professional Conduct or a discussion
of ethical issues was required.
The 10 most frequent calls
from lawyers received in the
period concerned, in descending order, fraud, trust
accounting, client identification and verification, confidential information, conflicts, real
estate, preservation of client
property, withdrawal from representation, communication
with a represented party and a
client with a disability.
Among paralegals, the top 10
areas where help was sought
were the paralegal’s scope of
practice, his or her annual
report, delegation/supervision,
practice arrangements, firm
name, withdrawal from representation, trust accounting,
bookkeeping requirements,
conflicts and professional corporations.
CONGRATULATIONS
JEFFREY S. LEON, LSM.
On his recent elevation to the level of
Regent, American College of Trial Lawyers
WAY TO GO, JEFF!!!
THE LAWYERS & STAFF OF
FABER BICKMAN LEON
350, 603 7 Ave SW Calgary AB T2P 2T5
www.fbllaw.ca
