The Lawyers Weekly - February 18, 2011

NONAGERIAN
Top court says superior
courts can order funding
for public interest cases
in lower courts
CRISTIN SCHMITZ OTTAWA

For the first time the Supreme Court has ruled that superior courts are empowered to order governments to fund public interest litigation before statutory courts and tribunals.

“Such orders must be highly
exceptional and made only
where the absence of public
funding would work a serious
injustice to the public interest,”
Justice Ian Binnie stipulated in
his 9-0 judgment Feb. 4.

months into trial when Caron ran out of money. Caron had by then exhausted all other possibilities for funding his case, which the courts below found had prima facie merit and great public importance and could end up requiring Alberta to reenact all its unilingual statutes in both official languages.

“In mid-trial the provincial court, so to speak, had a tiger by the tail,” Justice Binnie observed. “A lopsided trial would not have put the languages issue to rest. Mr. Caron’s challenge was considered by the courts below to have merit and in their view it

See Caron Page 3
97-year-old lawyer still
practising in Winnipeg
PAGE 4
DIVORCE INSURANCE
Family lawyers
debate its merits
PAGE 9
SECURITIES SAGA
present environmental cases
COLLABORATIVE LAW
Judges give tips on how to
JEREM Y HAINS WORTH VANCOUVER
The futility of national
securities regulation
PAGE 14
DISABILITIES
Tips on treating all clients
with dignity and respect
PAGE 22
DAN RIEDLHUBER FOR THE LAWYERS WEEKLY
Lisa Semenchuk and Graham McLennan acted for
the plaintiff in a decision that sets the standard of
care required of collaborative family law lawyers.
See story on page 13

Litigators seeking successful case outcomes should first treat judges like human beings and make their jobs as the triers of fact as easy as possible, a panel of judges told a Vancouver environmental law conference Feb. 4.

The judges discussed creating
summaries of complex cases, case
preparation, expert witnesses and
practice points.

The group heard B.C. Court of Appeal Justice Harvey Groberman, Federal Court Justice Robert Barnes, former B.C. Environmental Appeal Board and Ontario Environmental Review member Toby Vigod and New South Wales, Australia Land and Environment Court Chief Judge Brian Preston.

“Help the tribunal out,” said
Vigod. “Define your issues.
Come in with a framework of
what you think the issues are.”
Barnes said litigators need a
solid understanding of justi-
ciability, noting at times he has
been asked to proclaim legisla-
tion, something he said is
beyond his power.
“If you can find something
that’s enforceable, then we will
order the government,” he said.
He advised lawyers the gov-
ernment will often try to argue
standing issues instead of the
merits of a case.
“Crown often doesn’t want to
get to merits,” Barnes said. “They
know they have a loser case.”
Added Vigod on the roles of
tribunals, “it’s really important
to look at the role of tribunals
and what processes are available
to them.”
Groberman advised lawyers that
they are not approaching a hostile
environment when appearing
before judges.

He suggested that litigators bring information to court in a digestible manner, especially when it comes to expert witnesses who should have comprehensibility, candour and completeness in their presentations.

“A lay person should be able to comprehend what they’re hearing,” Groberman said. “As a lawyer, it is your responsibility in preparing a witness. You can’t baffle us because if you baffle us, we throw your case out.”

See Judges Page 26

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