Expert Reports: Are They Inherently Material Evidence?

By: Camille Sehn

PDF Version: Expert Reports: Are They Inherently Material Evidence?

Case Commented On: E.G. v Alberta (Child, Youth and Family Enhancement Act, Director), 2014 ABCA 396

This summer I posted a comment on a successful application to stay the Queen’s Bench decision of the Honorable Mr. Justice G.C. Hawco, which reversed a Permanent Guardianship Order (“PGO”) made by the Provincial Court at trial. On the hearing of the appeal of the Director of Child and Family Services (“the Director”) of Justice Hawco’s decision, there were several issues raised surrounding the expert reports that were entered as evidence at trial and relied upon in Justice Hawco’s decision, but not relied upon in the trial decision of the Honorable Judge L.T.L. Cook-Stanhope. This post will comment upon the Court of Appeal (Justices Côté, Rowbotham and Jeffrey) decision on those issues.

Facts

The background to the appeal is outlined in greater detail in the decision and my earlier post, but it is important to highlight several important developments within the case which began at trial. There were two reports entered as evidence by counsel for the parents, the reports of Ms. Debra Harland and Dr. Sonya Vellet, which were then withdrawn during trial. The authors of these reports were not called as witnesses, therefore not available for cross-examination, and counsel for the parents confirmed to Judge Cook-Stanhope that the parents were not intending to rely on them.

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The Top Ten Canadian Legal Ethics Stories – 2014

By: Alice Woolley

PDF Version: The Top Ten Canadian Legal Ethics Stories – 2014

For the last two years I have written up the “top ten” Canadian legal ethics stories for the prior year (2013 and 2012). This year I initially wondered whether it would be possible to identify ten important legal ethics stories. It wasn’t. Moreover, it is fair to say that some of these stories now justify the descriptor “saga,” making their third consecutive appearance on the list.

It should be noted that the ordering of the list is neither rigorous nor based on a precise calculation of each story’s importance. Nor is the “Top Ten” descriptor a claim I’d aggressively defend. I’m not sure whether, in an objective sense, these are the top ten stories and nor am I sure which ones are more interesting and significant than the others. But since “Ten Canadian legal ethics stories listed in no particular order but that I, for my own idiosyncratic reasons, think are interesting and significant” is not exactly catchy, I’m sticking with “Top Ten.”

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ABlawg a Runner up for 2014 Clawbie

The Canadian Law Blog Awards (Clawbies) for 2014 were announced this morning, and ABlawg is very pleased to have been recognized as a runner up in the category of Best Law School/Law Professor Blog. One of ABlawg’s nominees, Paul Daly’s Administrative Law Matters, took the top spot in the category this year. Our colleague Lisa Silver, who teaches criminal law, was also a runner up in the category for her Ideablawg.  And, our colleague John Paul Boyd from the Canadian Research Institute on Law and the Family – also one of our nominees – was recognized in the category of Best New Blogs for his blog Access To Justice in Canada.

We extend our thanks to all of our nominators and the Clawbies selection committee, and our congratulations to all the winners, runners up and nominees.

ABlawg looks forward to continued engagement with our readers in 2015. Happy New Year!

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Ensuring Competent Representation: Know What You Don’t Know

By: Alice Woolley

PDF Version: Ensuring Competent Representation: Know What You Don’t Know

You’ve got to know when to hold ’em

Know when to fold ’em

Know when to walk away

And know when to run

You never count your money

When you’re sittin’ at the table

There’ll be time enough for countin’

When the dealin’s done

The Gambler (Don Schlitz; performed by Kenny Rogers)

Being a competent lawyer means knowing your own limits.  Lawyers representing clients in cases for which they do not have the necessary knowledge and skills risk liability in negligence, being found to have provided ineffective assistance of counsel (in a criminal case) and violating the obligations of the codes governing their conduct.  Those codes define the competent lawyer as “recognizing limitations in one’s ability to handle a matter of some aspect of it and taking steps accordingly to ensure the client is appropriately served” (FLS Model Code, Rule 3.1-1(h)).  They further state that a lawyer ought not to take on a matter for which she is not competent and must recognize “a task for which the lawyer lacks competence” (Rule 3.1-2, Commentaries 5 and 6).

How difficult can this be?  Quite, according to some recent media reports.  While the facts as reported are not sufficient to support the conclusion that the lawyers involved acted improperly, they do at least raise the question: given the apparent disconnect between their expertise and their clients’ circumstances, why were these lawyers acting?  And what lessons might we be able to draw to allow lawyers to appreciate when folding ‘em is wiser than holding ‘em?

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All I Want for Christmas is the Justification for Shell Jackpine

By: Martin Olszynski

PDF Version: All I Want for Christmas is the Justification for Shell Jackpine

Case Commented On: Adam v Canada (Environment), [2014] FC 1185

On December 9, 2014, the Federal Court rendered its decision in Adam v. Canada (Environment). Chief Allan Adam, on his own behalf and on behalf of the Athabasca Chipewyan First Nation (ACFN), challenged two federal government decisions pursuant to the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA) in relation to Shell Canada’s proposed Jackpine oil sands mine expansion project. The first was the Governor in Council’s (GiC) determination pursuant to section 52(4) that the project’s anticipated significant adverse environmental effects are “justified in the circumstances.” The second was the Minister’s “Decision Statement” pursuant to section 54, which contains the conditions subject to which the project may proceed. In a decision that reads somewhat tersely but that also covers a lot of ground, primarily Aboriginal consultation and division of powers issues, Justice Tremblay-Lamer dismissed the ACFN’s challenge. This post – the first of what will likely be a series – focuses on the first challenged decision: the GiC’s determination that the project’s significant adverse environmental effects are justified.

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