Wednesday, August 31, 2011

Return of the Libranos starring Pat "Dirty Harry" Martin!

Tonight's episode, "Boys, what did you do with Harry? Harry who Boss?"

Welcome to Ballsville fans!

Mr. Jim Bell
Winnipeg Football Club
1465 Maroons Road
Winnipeg, Manitoba R3G 0L6

Dear Mr. Bell:

After reading the following article about Knoxville, Tennessee lawyer Stephen A. Burroughs, we'd like to recommend the Swaggerville name be changed to Ballsville or perhaps in the alternative even Cojonesville. We all know lawyers like to sue.

Besides, on the eve of The Banjo Bowl how would it look if word got out the real Mayor of Swaggerville was alive, well and living in the United States?

Clare L. Pieuk

Media Citizen Journalist
Blog Master

There's No Such Thing as Bad Publicity When You've Got Swag
By Natash Lydon
August 31, 2011 The legal profession isn’t known for its sense of humor. On the contrary, most attorneys take themselves way too seriously. As a result, we see some pretty ridiculous attorney advertising that ends up being unintentionally funny. And while we’re happy to poke gentle fun at these websites and ads, our commentary isn’t always well received. Because another thing that lawyers aren’t known for is the ability to accept criticism.

Knoxville attorney Stephen A. Burroughs, a personal injury and auto accident lawyer and my new favorite person, is an exception to these rules. Anyone from the Knoxville area is likely familiar with Burroughs, having seen his serious, bearded face on billboards all over town.

The ads were so ubiquitous, and Burroughs’s gaze so smoldering and intense, that someone created a Facebook page devoted to Stephen A. Burroughs Memes, transforming Burroughs into Knoxville’s answer to The Most Interesting Man in the World. As the Facebook page gained popularity, the funny memes started pouring in.
Even better than the jokes, though, was Burroughs’s unexpectedly awesome response ….

Local news caught up with Burroughs a couple of weeks ago, when he gave an incredibly good-natured interview about the Facebook page. Burroughs has read every one of the memes submitted and has been reveling in the unexpected attention: “I’ve enjoyed laughing at myself along with everyone else.” He even goes so far as to praise the page’s creator, Ryan Clark, as a “genius.”

As the meme page became more popular, Burroughs upped the ante, offering to throw a big party if the page got 10,000 “likes” before the end of August. That goal was reached this past weekend, ahead of schedule.

Now, true to his word, Burroughs is throwing Swagfest 2011 on September 9 to celebrate his new-found fame. Originally planned to be held in Knoxville’s Sunsphere (aka Burroughs’s Palace), the number of RSVPs quickly surpassed the Sunsphere’s 300-person capacity, and Burroughs has now also rented out the Knoxville Convention Center to accommodate all of his guests.

He has hired three bands and a local radio station DJ to provide entertainment. During the party he will be giving away over 4,000 t-shirts and $15,000 in free vacations. But, like any good businessman, Burroughs has not passed up the opportunity to use Swagfest as a platform for advertising his law practice.

As party preparations have been under way, the Facebook site has only gained popularity. The page currently has over 12,000 “likes” and the number continues to grow every day. Burroughs has set a new goal of gathering 20,000 “likes” by September 15.

Burroughs issued an official announcement on Monday, providing more details about Swagfest and promising that “Knoxville can expect a party like they’ve never seen a private party before in the history of this whole town.” Over 3,000 people have already said they are attending.

A few examples of Stephen A. Burroughs memes.

If you’re not anywhere near Knoxville and not able to attend Swagfest, you can still enjoy the Facebook page and add to the growing collection of memes. The page also provides useful insight into the legend himself:

Stephen A. Burroughs is the only thing in Knoxville more prominent than the Sunsphere and more ubiquitous than drunk sorority girls.

Personal Interests: Beard trimming, staring contests, leaping over mountains, fighting rattlesnakes, and holding doors open for ladies.

Both Ryan Clark and Stephen A. Burroughs have helped to perpetuate the memes in interviews. It seems that Burroughs is having more fun with this than anyone. And really, who can blame him for taking full advantage of all the free publicity?

If you are lucky enough to be in the Knoxville area and want to attend Swagfest (as well you should), you can RSVP here or here. Just make sure you act quickly, as the deadline for getting on the list is September 4 at midnight. Also, be sure to groom your beards and dust off your flashiest duds, because the dress code, naturally, is “Swag – Dress to Impress!”

I’m truly sad that I won’t be able to attend Swagfest, but just knowing about Steven A. Burroughs and his fantastic beard has brightened my day. Keep your swag up, Mr. Burroughs. We wish you the best of luck with all your swagtastic future endeavors.

Stephen A. Burroughs Memes [Facebook]

The dancing prosecutrix?

Good Day Readers:

Here's Nancy Grace at her best.

It was announced the other day self-proclaimed, none too subtle victim advocate Nancy Grace will be a contentant on this fall's thirteenth season of Dancing with the Stars. Twitterdom has already reacted:

@elle_bee_are – [I hope] her costumes are as over the top as her eye makeup and hatred of any defendant anywhere. ;)

@Joey_Powell – Is it bad to hope she tears an ACL?

@PeytonsHead – Is it too early to go ahead and vote her off?

@realjohngreen – When I see Nancy Grace trending, I click expecting to see, “Nancy Grace Is No Longer Allowed to Participate in Public Life.” Alas.

@TheFakeCNN – Nancy Grace has signed on for Dancing With The Stars. Casey Anthony expected to be her surprise partner.

@elle_bee_are – A courtroom-themed dance, like Kate Gosselin’s paparazzi-themed one, would be horrifically amazing.

We predict the 51-year old Ms Grace will win resplendent in black tights, heels and leather bouncing around the dance floor first beating her partner into submission with a whip then attacking the panel of judges.

Clare L. Pieuk

Tuesday, August 30, 2011


Judge Sam Sparks
United States District Court
Western District of Texas

Dear Judge Sparks:

Roses are red
Violets are blue

CyberSmokeBlog's Resident Poet Laureate

Judge takes aim with rhyme and reason
Published May 10, 2007

Part of the job of a federal judge is to listen to squabbling attorneys. But everyone has a limit.

U.S. District Judge Sam Sparks of Austin, Texas, apparently hit his recently after a lawyer in a case he was presiding over filed a motion he found particularly pesky.

Sparks has a short fuse when it comes to bickering attorneys. In 2004, he compared another set of attorneys to kindergarteners. "The Court simply wants to scream to these lawyers, 'Get a life' or 'Do you have any other cases?' or 'When is the last time you registered for anger management classes?' "

In this case, in which a media company sued one of its former in-house lawyers for jumping to another company in the same field, the judge's tolerance for infighting finally ran out.

Here is his order.

Keystone Media International LLC vs. David B. Hancock

Be it remembered on the 25th day of April 2007 the Court reviewed the file in the above-styled cause, and specifically the defendant Hancock's motion for protection filed April 23, 2007, and after reading it a second time to make sure it was not a practical joke, the Court enters the following:

Stallions can drink from a creek without a ripple
The lawyers in this case must have a bottle with a nipple

Babies learn to walk by scooting and falling
These lawyers practice law by simply mauling

Each other and the judge, but this must end soon
(Maybe facing off with six shooters at noon?)

Surely lawyers who practice in federal court can take
A deposition without a judge's order, for goodness sake

First, the arguments about taking the deposition at all
And now this - establishing their experience to be small

So, let me tell you both and be abundantly clear
If you can't work this without me, I will be near

There will be a hearing with pablum to eat
And a very cool cell where you can meet


Monday, August 29, 2011

An anti-SLAPP statute for Manitoba?

Good Day Readers:

According to Philadelphia-based The Legal Project:

Strategic Lawsuits Against Public Participation (SLAPP) refer to suits brought in response to efforts by individuals or groups to participate in the democratic process by some person or entity that claims to have been wronged through that participation. A common type of SLAPP suit is a defamation action. These SLAPP laws often have a chilling effect on the grass-roots exercise of First Amendment Rights.

Because of the effect these suits can have on citizens petitioning the government for redress of grievances, numerous states have enacted some form of anti-SLAPP legislation. California in particular has been the leader in litigation interpreting and applying SLAPP legislation.

About 50% of American states have some form of anti-SLAPP statute on the books wherein if a lawsuit can be shown at an early stage to be a frivolous, nuisance/abuse action it can be thrown out. To the best of our knowledge Manitoba has nothing comparable. As previously noted, perhaps a review of the province's Defamation Act is in order otherwise these types of cases can go on ad nauseam.

In of MMF et al. versus Terry Belhumeur et al. ( - CI 05-01-41955) the allegedly defamatory material was contained in a petition calling for reform and greater accountability of the taxpayer financed Manitoba Metis Federation's election expenses - at the time like the wild, wild west without horses.

What's interesting in the California example below is the way a lawyer is trying to misuse anti-SLAPP legislation to threaten, intimidate and silence a citizen advocate.

Clare L. Pieuk

Not to worry Chief Justice Scott the process works!

Good Day Readers:

Chief Justice Scott is discussing Judicially Assisted Dispute Resolution a voluntary process available to both parties in civil court. The objective is to avoid a lengthy, costly trial for a legal system already stretched to the limit - in Manitoba it's not unusual for assignment of a trial date to take up to one year or more from the request being made.

With JADR both sides submit a list of three judges and if they can agree on one it begins. However, the process can be cratered if the Plaintiff(s) or Defendant(s) choose to withdraw during the negotiation phase.

By way of very brief background, long story short, our precursor site CyberSmokeSignals was advised by a well-informed anonymous source (September 2003) the Canadian Taxpayer financed Manitoba Metis Federation had assigned a lawyer to monitor CSS in search of litigious material. The "Defamation Watch" had begun. In response we retained the services of a Metis solicitor who agreed to act pro bono as our legal advisor. Believe it or not this same individual wrote the allegedly defamatory material at no time cautioning us it might contain potentially litigious statements. Another Ripley's, he went on to become a crown prosecutor in Alberta.

Fast forward to March 2005 when a Statement of Claim was finally filed. I recall at the time reading it and thinking, "This is eventually going to collapse all over the Plaintiffs." What I didn't realize was how long it would take.

It was a classic textbook case of what American legal scholars have came to refer to as a SLAPP (Strategic Lawsuits Against Public Participation). The following illustration describes the concept much better than we ever could.

Manitoba Justice's online File Registry ( lists almost 250 documents the vast preponderance filed by the Plaintiffs in MMF et al. versus Terry Belhumeur et al. (CI 05-01-41955). Toward the end Winnipeg lawyer Mr. Anders Bruun entered the case as my attorney. Some may recognize this name from his representation of Friends of the Canadian Wheat Board in its current dispute with the federal government. He recommended and convinced me to try JADR again.

Very early in this legal "odessey" an attorney Mr. Jeff Niederhoffer, who acted briefly for the Defendants before accepting a position out of province as a criminal defence lawyer, proposed JADR but was flately rejected by the Plaintiffs. Later I too withdrew from a renewed attempt at Judicially Assisted Dispute resolution because of the accumulated actions of the Plaintiffs' lawyer. When it was suggested again this time by Mr. Bruun the Plaintiffs almost tripped over themselves rushing to accept - it was indeed amusing!

Before finally reaching JADR I had survived approximately 25 Pre-Trial Conferences (That's probably more than convicted British Columbia serial killer Willie Pickton!) some of which involved both sides filing and arguing Motions; out lasted two Court of Queen's Bench Pre-Trial Justices and filed an appeal with the Manitoba Court of Appeal - possibly the first Manitoba layperson to do so.

I knew the Defence had at least four high cards:

(1) Manitoba jury trials for civil matters are extremely rare almost unheard of - I insisted on my right to trial by judge and jury because it would have likely attracted mega mainstream media attention. How could this possibly benefit a taxpayer funded organization? Under Justice Simonsen a trial date had been set for March 1, 2010 to last 6-weeks. When Justice McKelvey replaced Justice Simonsen it was reduced to 4-weeks

I then filed a Motion for an adjournment of the trial date so my appeal could be heard by an appealate court. Justice McKelvey heard and granted the Motion - a significant blow for the Plaintiffs. Eventually, JADR made the setting of a new trial date unnecessary

(2) Jury nullification is a subject which seems to be rarely discussed in Canadian legal circles. Not so in the United States where the courts are replete with examples. Simply stated, layperson jurors sometimes view/interpret the law somewhat differently than legally trained judges and lawyers leading to the potential for acquittals

(3) One of the Defendants would be self-represented. Or as Pre-Trial Justice Karen I. Simonsen noted, on more than one occasion, this could significantly delay and complicate legal proceedings while, for example, the jurors had to leave the courtroom while points of law were explained to the "self-rep"

(4) The lawsuit was an ill-advised and conceived classic SLAPP from the get go. As such it was full of Big, Big Holes

Suffice it to say, after the JADR Mr. Bruun and I left the courtroom with huge smiles on our face. Because the Plaintiffs insisted a confidentiality clause be written into the settlement agreement that's as far as I can go.

So you see Chief Justice Scott, Judicially Assisted Dispute Resolution can work.

Perhaps it's time to write a book about the Self-Represented Litigant versus the Canadian Judicial System but what should it be called?

Clare L. Pieuk


The Defamation Act of Manitoba is almost 30-years old during which time there have been no significant changes. It's been a while since I read it but we do not recall any direct reference being made to the internet, blogs, bloggers, nuisance/abuse lawsuits or SLAPPS. Perhaps it's time for an overhaul.

Sad truth is that's unlikely. Manitoba legislators will only take action unless or until someone successfully challenges The Act under provision of The Canadian Charter of Rights and Freedoms at which point provincial politicians will have no other option.

Electronic Copy
The Lawyers Weekly

Ethics, judges and mediation
By Cristin Schmitz
September 02 2011 issue
Chief Justice of Manitoba Richard Scott. [Photo by Cristin Schmitz for The Lawyers Weekly]

As part of a planned update of its ethical guidelines, the Canadian Judicial Council (CJC) is poised to examine the thorny questions of whether, when and how judges may appropriately do court-based mediation, The Lawyers Weekly has learned.

Manitoba Chief Justice Richard Scott, the chair of the CJC’s judicial conduct committee, revealed during an interview that the disciplinary body for Canada’s 1,100federally appointed judges is preparing to revisit, and eventually update, its ethical guidelines for judges. He said since the council of federal chief justices and associate chief justices issued the “guidelines” (they are advisory only) in 1998, new ethical questions have emerged, including concerns about Canadian judges’ participation in international activities and judges returning to the practice of law after they step down or retire from the Bench.

However, no judicial ethical issues may be more timely or important for the administration of justice than those currently swirling around judges’ participation in court-based mediation — a phenomenon that has taken hold and grown, albeit unevenly, across the country.

A leading proponent of judicial mediation, Ontario Chief Justice Warren Winkler, called last December for lawyers to debate the issue and the Ontario Bar Association recently recreated a Judicial Mediation Taskforce.

Chief Justice Scott told The Lawyers Weekly there remains a fundamental unresolved question about whether judicial mediation risks undermining the public’s view of the judiciary as society’s ultimate impartial arbiters.

“I’m no expert in this — but mediation done properly involves caucusing,” Justice Scott explained. “Caucusing [means] you meet with the parties independently. And the long-term worry that I have — and I have to tell you this worry is not shared by all judges — is its long-term impact on the public’s perception of our impartiality. Judges do things in public. Judges do things in the presence of both parties. Now here’s the judge [who is doing mediation] meeting with one group and then the other.”
Chief Justice Scott said many “fine, ethical, experienced” judges who do mediation have told him they have not experienced problems. “In [Saskatchewan] the judges who are doing it think it’s the greatest thing since sliced bread,” he acknowledged.

Nor has the CJC, to the best of Chief Justice Scott’s knowledge, had mediation-related complaints about judges. “But it’s a worry,” he observed.

He noted that during the Canadian Institute for Advanced Legal Studies program at Cambridge this summer “there was a lot of discussion there about judges changing their role too aggressively, and the long-term impact that may have on the judiciary and the public’s confidence in our impartiality, so that’s my worry.”

This concern might weigh more or less heavily, depending on the type of case, he suggested.

“In the kind of [mediation] work that Chief Justice Winkler does, which is high-end commercial work, the concern about the public’s perception of impartiality is very different than it is in a family dispute,” Chief Justice Scott noted. “In Chief Justice Winkler’s circumstances, he is dealing with highly sophisticated clients represented by very experienced and sophisticated counsel, so they know the rules. They know what the judge is doing. They understand the ramifications. That’s not necessarily the case in other circumstances.”

Chief Justice Scott said that the planned re-examination of the ethical principles by the CJC’s Judicial Independence Committee is still “in the very preliminary stages.”

Claustrophobic? Have we got a deal for you!

Photograph of the day!

Grand Chief Steve Harper, Disneyland-Over-The-Rideau Reservation, Ottawa

Looking for one honest judge in California!

Sunday, August 28, 2011

Going ..... going .....

Double-crossing double-dipping politicians!

Dear Clare Pieuk,

Thank you for taking the time to submit your story idea to the The Lawyers Weekly Managing Editor. Please allow the editor some time to review the potential story idea for content and newsworthiness. We will contact you if we would like more information or to pursue the idea. Thank you for your submission; we appreciate your help in developing stories and keeping our readers well informed of recent happenings in the legal profession.


The Lawyers Weekly Editorial Staff
Suite 700, 123 Commerce Valley Drive East
Markham, Ontario
L3T 7W8

Saturday, August 27, 2011

The other side!

Natalie Fraser
Managing Editor
The Lawyers Weekly
Suite 700
123 Commerce Valley Drive East
Markam, Ontario L3T 7W8

Dear Ms Fraser:

The following article is one-sided, misleading and leaves the mistaken impression in cases involving self-represented litigants it is they who create all the problems for the judicial system. However, in an increasingly litigious society this over simplifies and misrepresents the situation because of the implicit, underlying assumption lawyers always act completely ethically and with integrity while Judges at Pre-Trial Conferences are above making errors which cannot be appealed. But do they?

American legal scholars have coined the term SLAPP (Strategic Lawsuits Against Public Participation) of which more and more are showing up in courts throughtout Canada and the United States. The following illustration accurately portrays the situation. The Lawyers Weekly site invites individuals to submit story ideas which we are prepared to do. Accordingly, we recommend staff reference the Manitoba Court of Queen's Bench online File Registry ( - File Number CI 05-01-41955: Manitoba Metis Federation versus Terry Belhumeur et al.) for a classic textbook example of a SLAPP.

If you are interested in a follow-up article to present the other side of self-represented litigants we are prepared to make ourselves available for discussion. We have firsthand knowledge and experience with the aforementioned case.

Clare L. Pieuk

Media Citizen Journalist
Blog Master

Self representation in court common nuisance
By John Schofield
August 26 2011 issue

Many self-represented litigants are in over their heads with paperwork and require a bit of a hand to get through a case [contour99/].

It wasn’t one of the highlights of Chelsea Caldwell's career. But it ranks as one of the Vancouver lawyer’s more unusual experiences. In a downtown office building, in the middle of the day, a man stood in the middle of the lobby, proclaiming to anyone who cared to listen what a bad lawyer he thought Caldwell was. Ironically, he capped off his performance by paying her several thousand dollars to settle a case she had just won for her client. “I think his announcement was lessened,” she remembers with a laugh, “by the fact he was handing me a big wad of cash.”

It may seem funny now, but the story is a vivid illustration of the frustrations that lawyers can face when they go up against self-represented litigants. Anecdotal evidence suggests that’s happening more often. But if do-it-yourself lawyers aren’t handled carefully, Caldwell warns, it can end badly for almost everyone involved. “A self-represented litigant is vulnerable, frequently angry, sometimes volatile, and usually the less-informed person in the room,” she wrote in a paper she delivered in May to the Continuing Legal Education Society of British Columbia’s small claims conference. “As a result, that litigant is capable of creating chaos, unless he or she can be either made to feel respected or managed very efficiently.”

Sooner or later, almost every lawyer faces a self-represented litigant (SRL). And the odds are increasing — not only in small claims court and family court (the traditional preserves of the SRL), but in Superior and Supreme Court cases. Precise statistics are hard to come by. Still, in a survey of lawyers attending the Law Society of Upper Canada’s Family Law Summit last June, Queen’s University law professor Nicholas Bala found that 80 per cent of the 167 respondents reported they were encountering SRLs more often. Caldwell says she’s seeing SRL more at the Supreme Court level, too.

Money is the main reason. Not everyone qualifies for legal aid. And those who don’t sometimes feel they will cut costs by representing themselves. In the age of the Internet, says Carol Cochrane, a family lawyer with Ottawa-based Low, Murchison LLP who has also written on the topic, some people think that a few Google searches will make them an instant legal expert. In some provinces, she adds, mandatory family-law information sessions also lead litigants to believe that that’s all they need to know. Lawyers, too, share some of the blame for the rise in SRLs. “Unfortunately,” says Cochrane, “there’s still a negative perception of lawyers that they will extend a case for their financial gain.”

But the SRL is more likely to complicate and prolong the court case than any lawyer, says Dan Pinnington, the director of practicePRO, an initiative by Toronto-based Lawyers’ Professional Indemnity Co. to provide risk management and claims prevention information to Ontario lawyers. As cases drag on, tempers can flare, he warns, and lawyers need to handle their own clients carefully. Fully a third of malpractice claims stem from lawyer-client communication issues, he notes. “Anything that potentially causes your client unhappiness,” says Pinnington, “you need to be aware of that and be proactive in dealing with it.”

By following a few survival tips, lawyers can go a long way to ensuring that the proceedings run smoothly. Start by observing the rules perfectly and bending over backwards to be respectful, regardless of the frustration level. “You have to be very firm with self-represented litigants, but at the same time you have to be the bigger person,” says Caldwell. “Your job is to present your case, but it’s also to assist the court, and you’re going to look like a real schmo if the person is struggling to find a document and you’re not helping.”At the same time, lawyers risk offending their own clients if they appear to be too supportive. In communicating with lay litigants out of court, Caldwell recommends avoiding phone calls and putting everything in writing. Cover yourself and maintain a paper trail. If phone calls occur, she suggests following up with an email summarizing the conversation and asking the SRL for his or her interpretation.

Lawyers should reassure their clients that they’re giving their adversary only enough information to advance the client’s case, says Cochrane. To convince them you’re in their corner, she advises lawyers to politely encourage the self-represented litigant to talk to duty counsel or to retain their own lawyer. If the case is going into overtime, let your client know that there may be extra costs, but the investment will be worthwhile and they’ll leave with a solid agreement. “This is an area where you have to be completely upfront and make sure your client is appreciative of the fact it’s going to take longer,” says Pinnington.

Judges are another story, says Caldwell. Their behaviour is beyond your control. Courts are surprisingly patient with lay litigants, she notes, and it’s easy for clients to feel that the judge is helping the self-represented litigant too much. Remind them that the judge is there for both sides. “The problem in litigation is there’s usually a winner and a loser,” she says. “There are probably a lot of lay litigants out there who feel the system is unfair. Judges and masters try very hard to make sure that isn’t the case.

”If things turn ugly, Caldwell urges lawyers to remain professional at all times. She says that more than one self-represented litigant has threatened to drag her before the law society, and she’s been called a variety of names. But if lay litigants respect the process, they are respected in return. In the end, she notes, lawyers are just there to do their jobs. “Lawyers are there to get the right result, but we can never forget it’s important that justice be seen to be done,” she says. “I want that person to walk away having seen the judge treat both sides fairly.”

A classic no brainer!

Good Day Readers:

Positions in the federal public service a lot lower than a Justice on the Supreme Court of Canada are designated bilingual so why not them?

Clare L. Pieuk

Barreau du Québec insists SCC judges be bilingual

Written by Heather Gardiner
Thursday, August 25, 2011

With the upcoming vacancies at the Supreme Court of Canada, the Barreau du Québec insists the incoming judges be bilingual. Bilingualism is ‘an essential requirement’ for Supreme Court judges says Barreau du Québec’s Claude Provencher.

With justices Ian Binnie, 72, and Louise Charron, 60, stepping down from the top court at the end of the month, there is much talk about who the federal government will select to fill their spots.

Whomever is chosen, the Barreau du Québec is pushing for them to be bilingual.

Claude Provencher, executive director of the Barreau, says Canadian citizens have the constitutional right to be heard by a judge in one of Canada’s two official languages.

“[It’s not] an issue of French versus English, [it’s] an issue of the right to be heard in your first language and the official language of your choice when you go to court,” Provencher tells Legal Feeds.

The Barreau du Québec supported NDP MP Yvon Godin’s proposed bill C-232 to require Supreme Court judges to be bilingual, but it died after the election was called.

Provencher says until there is legislation requiring it, it should be common practice to appoint bilingual judges to the SCC. This has often been the case with a recent exception of Prime Minister Stephen Harper’s appointment of Justice Marshall Rothstein in 2006, who is unilingual.

“We don’t ask judges to know foreign languages, we ask them to know English and to know French, they are our two official languages. It should not be considered as an asset, it’s an essential requirement,” says Provencher.

He adds that court interpreters are not a sufficient solution. “It has been shown that there is a lot of inaccurate translation.”

Not only is it a legal matter, he says, but it’s also important for for judges to be knowledgeable about society.“How can you really know about the English society or the French society if you have no real access to the media, television, [or] you cannot really have real conversations in the other official language if your knowledge of the French or the Quebec society is through what you read in The Globe and Mail — is it really accurate?”

Friday, August 26, 2011

The long, long arm of the Internal Revenue Service!

Hi Clare,

I wanted to present a book that is available for your review – Justice For None by Jessica James. Let me know if this book interests you and I will gladly ship a copy right away.

Many believe the American justice system protects the law-abiders from law-breakers by convicting and incarcerating the wrong doers. The vehicle to accomplish this is the trial by way of judge and or jury. However, that vehicle has rusted exposing gapping holes while running on empty. Apparently, unintended consequences have created a cancer, the silent invisible killer.

The courts support and are maintained by convictions, not exonerations. Winning is paramount, not truth or justice witnessed by organizations as the Innocence Project or the Justice Project continually quantifying and exposing shameful situations. Emphasizing convictions instead of truth has incarcerated over 2.5 million within America, more than any record-keeping nation on the face of the earth. The myth of increased convictions to decrease crime rates has been shoved down the throats of Americans every way possible while statistics bear otherwise.

Justice For None is one story. A raid on an organization of like-minded individuals and related companies called the ‘largest crackdown in the history of the U.S. Internal Revenue Service.’ You decide if justice was served.

Thanks, Ginny

Ginny Grimsley
National Print Campaign Manager

News and Experts
1127 Grove Street · Clearwater, Florida 33755
Phone: 727-443-7115 EXT 207
Dear Ginny,

Thank you so very much for the complementary copy of the book which arrived yesterday - most kind and thoughtful of you. We'll have a read and share our thoughts.

The issue of the Internal Revenue Service's long, long arm has received some attention in Canada recently because of the HIRE Act (Hiring Incentives to Restore Employment Act) passed by Congress last March the repercussions of which are only now stating to be felt here. Long story short, if an American citizen has immigrated to another country, even though it may have been several years ago and the individual has never worked in the United States, nevertheless, they are required to file a annual tax return with the IRS otherwise the penalities can be quite severe.

Ottawa-based law firm Tierney Stauffer provides a nicely worded explanation of HIRE in layperson language reproduced below.

Interestingly, at the recently concluded Canadian Bar Association's annual convention a longtime simmering dispute finally surfaced between the Federal Court of Canada and the Tax Court of Canada for jurisdiction/administration of the Income Tax Act. It seems the latter is seeking exclusive responsibility suggesting the former has been subtly attempting to "muscle in" on what it views as its purview.

The equivalent of your IRS here is The Canada Revenue Agency (formerly Revenue Canada). Our favourite story?

In April of this year we dutifully filed our income tax return on time receiving a rebate a couple months later. Subsequently, a Notice of Re-Assessment arrived which included an interest payment of less than $14 ($13.67). So off we went to the local CRA office to argue our case in full realization we'd lose.

We found ourselves on the telephone with a Canadian Revenue Agency employee in Vancouver. After providing our Social Insurance Number it was "click, click" and the gentleman was staring at our return. In vain we tried to argue:

(a) it was the CRA that made the mistake otherwise there would have been no need for a re-assessment because we never subsequently filed any additional information

(b) charging interest for a period of time during which we were unaware we were under re-assessment was tantamount to Mafia-style loan sharking which is against the law

The gentleman noted this situation is covered in the Canada Revenue Agency General Income Tax and Benefit Guide everyone receives well in advance of the filing deadline. He went on to note, "The Income Tax must be set up so the government makes money." Upon hearing that we were unable to stifle a good laugh. The CRA agent could not understand what we found funny so we had to explain we never expected to win - you never do with the CRA.

Clare L. Pieuk


The story had a happy ending because once the arithmetic was done we still had some of the rebate minus $13.67 in loan sharking interest.
Tax Obligations of U.S. Citizens Living in Canada

March 28, 2011

It is the eve of April and Canadians are looking forward to warmer weather but, at the same time, feeling less than enthusiastic at the prospect of fulfilling their seasonal fiscal duty; that is preparing and filing their annual tax returns before the April 30th deadline. Similarly, American citizens, U.S. residents and U.S. green card holders also view April as “tax-season” and their deadline to file their tax returns with the IRS is April 15.

Contrary to the Canadian tax system which is based on residency, the United States tax system is based on one’s citizenship as well as residence. Under the U.S. tax laws all U.S. Citizens regardless of their place of residence, U.S. residents or green card holders, have a statutory obligation to file their tax returns in the United States.

Filing Deadlines

U S citizens, residents and U S green card holders must report all of their worldwide income from all sources no later than April 15th of the year following the taxation year. U S persons living outside the United States must also comply with the filing requirements but are granted an automatic two-month extension. Therefore, a U.S. citizen living in Canada must file his or her U S tax return by June 15th.

All U S citizens living in Canada must file their U.S. tax returns every year regardless of whether any taxes are due.

Even if a U S person owes no tax in the United States, he or she should file a return, if only to preserve all available tax credits.

Failing to maintain filings may trigger unfortunate issues such as denying renewal of that person’s passport or delaying entry to the United States until that person’s tax record is updated.

RRSPs, RIFFs and Penalties

RRSPs (Registered Retirement Savings Plans) and RIIFs (Registered Retirement Income Funds)are an area where there is a clear difference between the Canadian and U S reporting requirements.

Under U S tax law a U S citizen or resident owning a Canadian RRSP or RRIF must report any income and gain earned within his or her RRSP or RRIF on a yearly basis; not when the income is withdrawn as is the case under Canadian tax laws. To avoid double-taxation the Canada-U S Tax Treaty allows for an election in the U S citizen’s tax return to defer recognition of the income earned and gains until such income or gain is withdrawn from the subject RRSP or RRIF.

However, to take advantage of that election the U S person must file his or her tax return on time and failure to do so may result in losing the right to make that and other similarly important elections.

Estate and Gift Tax

Upon death, the United States levies a tax on the fair market value of the world-wide property of a U S citizen, U S residents or non-resident aliens if they own property in the United States. Consequently, any U S citizen living in Canada will be subject to the U.S. estate tax and ought to consider such in their estate planning (Canadians should consider the estate tax before acquiring U S property). There is a basic exemption available to U S citizens that may result in the estate being exempt from the estate tax but the prudent approach is always to seek professional advice on the subject.

One can see that, aside from the issue of estate tax, dealing with a deceased U S person’s taxes upon their death can be a nightmare for estate trustees if the deceased failed to file his or her U S tax returns in previous years. This will inevitably result in an onerous estate administration for the estate trustee and may have disastrous results for the beneficiaries. Also, an omission of the estate trustees to consider the U S estate tax and failure to ensure the deceased’s tax record is in order may result in the estate trustee being personally liable for any taxes owed.

To avoid such dire consequences on death, U S persons must maintain orderly and up to date tax files.

The HIRE Act

In light of the UBS banking scandal in the United States, Congress passed the Hiring Incentives to Restore Employment Act (HIRE). HIRE requires foreign banks and other financial institutions to report all U S persons’ bank and financial accounts to the IRS. HIRE also provides that foreign entities such as corporations, partnerships and trusts must report U.S. persons’ ownership or beneficial interests.

HIRE appears to provide overreaching powers to the IRS since it essentially implements a system that “forces” the foreign financial institution or entity to submit to the IRS’s jurisdiction. However, Canadian financial institutions and other entities will likely comply with HIRE and report U.S. persons’ bank and financial accounts to the IRS. This may complicate the U S persons’ income tax filing requirements since their information will have to mirror the data submitted by the Canadian institutions or entities.

Although the impact of the HIRE exceeds the scope of this newsletter, those involved in Canada-U S dealings and taxes must be informed.

Relinquishing U S Citizenship

Considering all of the onerous reporting obligations, the idea of simply relinquishing one’s U S citizenship may seem tempting. However, to no one’s surprise, the U S government has created onerous rules aimed at dissuading the relinquishment of U S citizenship for tax purposes.

To successfully relinquish your U S citizenship, one must first comply with all requirements of the U S State Department as well as completing and filing all required forms with the IRS; notably Form 8854 and ensure all tax returns are up to date.

Also, it is likely the U S person will be deemed to have disposed of all their worldwide assets at fair market value and incur taxes on the deemed disposition; something to consider before starting the process.

It is also possible that taxes may still be owed after one relinquishes his or her U S citizenship. Those rules are complex and ought to be discussed with a tax professional.

The expatriate tax will also apply if the relinquishing person is present in the U S for more than 30 days in any calendar year during the 10 years following the date that person relinquished his or her citizenship. Note that the expatriate tax only applies if it is greater than the amount of tax that would otherwise be imposed if you were taxed as a non-resident alien.

As one can clearly see, although tempting, relinquishing one’s U S citizenship may not be worth the trouble involved.


U S tax filing obligations are often misunderstood or simply ignored by U S citizens living in Canada. Ignoring or delaying the filing requirements places one at tremendous risk. The consequences of being held liable for failure to file a tax return in the U S will result in additional taxes, penalties and interest to be paid as well as other unforeseeable consequences.

If you are a U S citizen living in Canada, we highly recommend you seek professional tax advice as to your U S tax duties and obligations and make every effort required to meet all deadlines for filings.

Sébastien Desmarais
Tierney Stauffer LLP

This article is provided as an information resource and is not intended to replace advice from a quaified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions.

Insanity television?

Thursday, August 25, 2011

Well can you eh?

Sending disorganized crime to jail?

Whoa cowboy whoa ..... "Yip-pie-ya-aye, yip-pie yi-o ....." Ottawa we have a problem!

Good Day Readers:

Here's the problem for Gerry "Cowboy" Ritz. Section 47 (1) of The Canadian Wheat Board Act clearly states any significant change to the CWB must first be accompanied by a vote of its grain producing members.

Well, true to the sneak and creep governance style of "The Harper Government," it unsuccessfully attempted to block an Application filed by Friends of the Canadian Wheat Board with The Federal Court of Canada to enforce Section 47 (1) by petitioning the Court to have it summarily dismissed. Then it had the unmitigated cojones to request the decision be based on written submissions so there'd be no hearing open to the media and public. That sure was ballsy!

Fortunately, Anders Bruun counsel to FCWB quickly wrote to The Federal Court objecting to the government's actions. As a result there will be a special public sitting of the FCC held at its 4th Floor Courtroom 363 Broadway Avenue beginning at 9:30 a.m. Friday, September 9, 2011.

Clare L. Pieuk
Wheat Board vote deadline arrives
CBC News
Wednesday, August 24, 2011
The Wheat Board will count plebiscite ballots in September. CBC

Wednesday was the deadline for farmers to mail in votes in the Canadian Wheat Board plebiscite on the future of the organization.

Ballots sent to more than 68,000 wheat and barley farmers must be postmarked August 24, and will be counted on September 8 and 9, the Board said.

The federal government has said it plans to eliminate the Board's monopoly on sales of Prairie wheat and barley by August 1, 2012, without holding a vote of the farmers.

Federal Agriculture Minister Gerry Ritz has dismissed the plebiscite. "No plebiscite must ever trump the rights of those farmers who want to choose how they market their own grain," he said in May.

But the Board, run by farmers, believes they should determine its future. "Farmers deserve to be heard on such a monumental issue," Board Chairman Allen Oberg said in a letter to producers about the issue .

A group called The Friends of the Canadian Wheat Board has asked the Federal Court of Canada to review the government's plan, claiming that it violates the Canadian Wheat Board Act.

The board said more than 2,200 farmers have attended meetings about the issue over the past two weeks.

Courtroom 308!

Good Day Readers:

Yesterday we visited the Law Courts Building in particular courtroom 308, The Honourable Judge Marvin Garfinkel presiding, where there was a brief hearing for Provincial Judge Brian Corrin charged in February of this year with assault (1 count) and uttering a threat (1 count) against a Celia Corrin. Mr. Corrin, represented by Winnipeg lawyer Richard Wolson, did not appear.

Earlier Mr. Wolson had complained about the delay in appointing a prosecutor. From previous testimony an Ontario crown had been assigned but due to illness was forced to withdraw. Apparently a replacement has been selected although they were not identified. The next hearing is scheduled for Wednesday, September 14 at 10:00 a.m. again in courtroom 308.

Mr. Wolson indicated in the meantime he planned to make a submission to the court on behalf of his client - presumably filing a Motion. The crown suggested it may do the same. It would appear this case is far from trial ready assuming there is one. Mr. Corrin could choose to plead guilty in which case he would automatically waive his right to a trial. If this happens both sides would make a sentencing recommendation with the final decision resting with the presiding judge.

Use of an out of province prosecutor is apparently standard operating procedure in such cases so as to avoid any possibility of a conflict of interest, for example, where a Manitoba Crown had previously presented before Judge Corrin in a completely unrelated matter.

A special thank you to Manitoba crown prosecutor Nancy Martin who appeared yesterday while an Ontario prosecutor is being appointed. After court had adjourned she very graciously explained a couple questions we had regarding points of law.

Clare L. Pieuk

Wednesday, August 24, 2011

Munch ... munch ... munch ... slop ... slop ... slop ...

Tuesday, August 23, 2011

Sue for $20 million and next time order the black beans!

Lawyer sues Chipotle over beans made with pork
August 22, 2011

NEW YORK, (Reuters) - A vegetarian lawyer has sued Chipotle Mexican Grill for selling a bean dish that contains pork.

The lawsuit, filed in Los Angeles Superior Court, accuses the national fast food chain of duping the public into believing its pinto beans are vegetarian.

The plaintiff Kevin Shenkman "reasonably assumed Defendant's 'Pinto Beans' were not prepared with and did not contain bacon and/or pork since there were no representations made to the contrary," the complaint said. In-store menus made no mention of meat in the beans. And when Shenkman asked, Chipotle servers told him that the beans did not contain bacon or pork, the suit said.

"Throughout our 18-year history, our pinto beans have always been made with bacon, and we have not described them as being vegetarian," said Chipotle spokesman Chris Arnold. He said a better option for vegetarian customers was the black beans, which are labeled as vegetarian on the restaurant's menus and website. To avoid any confusion, the company plans to roll out new menu boards that highlight the use of bacon in the pinto beans, Arnold said.

Shenkman, who is Jewish and a vegetarian, sued on behalf of a class of California customers who, like him, cannot eat pork because of "ethical, religious, moral, cultural, philosophical or health-related" concerns, according to the complaint.

Shenkman's lawyer Edwin Aiwazian said the suit will come down to whether a reasonable consumer would expect the pinto beans to contain pork. He described his client, a business litigator and Columbia Law School graduate, as intelligent and principled. If Shenkman was deceived, "it's happening to a lot of people," he said.

Aiwazian currently represents Shenkman in two other food-related class action lawsuits. He recently filed a false advertising lawsuit against coconut water makers Vita Coco and One World Enterprises, accusing the companies of overstating their nutrient levels on their labels. Shenkman is also the named plaintiff in a proposed class action suit against Panda Express that accuses the chain of adding chicken powder to its vegetarian dishes.

News of meat in Chipotle's pinto beans came to light when Maxim senior editor Seth Porges tweeted on July 29: "After more than a decade of ordering Chipotle pinto beans, I was told they have bacon. As a non-pork eater, I feel ill. cc: @ChipotleMedia." He went on to praise Chipotle's "nimble response" on Twitter, adding that a company executive had called him to discuss fixes to the chain's menus.

Aiwazian said he had not seen any added pork disclosures in the restaurant's menus to date. The lawsuit alleges fraud and false advertising and requests unspecified damages, a corrective advertising campaign and an apology to class members.

In 2001, a class of Hindus and vegetarians sued McDonald's Corp for including beef seasoning in its French fries. McDonald's, which previously owned an interest in Chipotle, agreed to donate $10 million to vegetarian and religious groups to settle the case. Each of the 12 named plaintiffs received $4,000.

In July, a New Jersey appellate court ruled that a group of Hindu customers could sue a New Jersey Indian restaurant for serving meat samosas that were billed as vegetarian.

The Chipotle suit is Shenkman v. Chipotle Mexican Grill Inc, Los Angeles Superior Court, No. BC467980.
For Shenkman: Edwin Aiwazian of The Aiwazian Law Firm.
For Chipotle: Not immediately available.

(Reporting by Terry Baynes)
Follow us on Twitter: @ReutersLegal

Excellent eyesight!

Frank Godon has left a new comment on your post, "It's her politics that's the royal pain in the ass!"

Maybe she has migraines because she's afraid of the Soviet Union?


Dear Comrade Godon:

Thank you for contacting CyberSmokeblog. Perhaps like Sara Palin she too can see the Soviet Union from her backyard in Waterloo, Iowa.

Clare L. Pieuk

How can you take a lawyer with bad shoes seriously?

Winnipeg lawyers: Got crows feet do we? Or perhaps "fatique lines" under your eyes from too much over billing? Have we got a solution for you!

Too little too late!

Woman’s 29-month wait for ruling ‘most regrettable,’ court says

Tracy Tyler, Legal Affairs Reporter
Sunday, August 14, 2011

For Jacqueline Spicer, the wait is over.

After 29 months, a Toronto judge finally issued a ruling awarding the mother of two $7,500 for legal costs in a custody dispute with her ex-husband.

Justice Susanne Goodman released her decision August 10, one day after a story about the delay was published on

The trial wrapped up in 2007 and Goodman released her judgment on support payments on November 21 2008. Still outstanding was the issue of Spicer's legal costs, which could also affect how the couple's property is divided.

“We were clearly disappointed in the awarded amount,” said Spicer, referring to herself and lawyer Joy Casey.

Spicer said her actual bills were $93,000 and they had asked the court to award $60,000.

In a letter to the editor of the Star, Roslyn Levine, executive legal officer to the office of Chief Justice Heather Smith of the Superior Court of Justice for Ontario, said the delay in issuing the costs order in Spicer’s case is “most regrettable.”
The court relies on judges and their staff to record and track decisions that are under reserve, but they might not always be recorded, tracked and reported in the same way, she said.

The court has an “excellent record” in tracking reserved judgments but tracking costs orders has not been as consistent, Levine added.

The Star asked Levine how many of the court’s decisions have been on reserve for longer than six months, the maximum suggested by the Canadian Judicial Council and Ontario's Courts of Justice Act.

Levine was also asked if the court could explain why at least three of Goodman's decisions — Spicer's costs order and two judgments in unrelated cases — were on reserve for more than two years.

Levine declined to answer the questions.

In an email, Levine said her letter to the Star provides a comprehensive response to the story.

“I do not plan to comment any further,” she said.

One Toronto family law lawyer said Goodman personally isn't the problem, describing her as “one of the most dedicated, hard-working and compassionate” judges on the court.

The problem is systemic and the court’s regional senior judge in Toronto has “ample” resources to fix it, the lawyer suggested. The regional senior judge oversees the assignment of judges to cases and could arguably free up a judge who needs time to complete a ruling.

That judge is Justice Edward Then, who, perhaps more than others, might have sympathy for a colleague who has fallen behind with a judgment.

After all, Then himself once took three years to issue a ruling. That was his judgment in a special inquiry he launched in 2004 into whether he had been misled about journalist Stevie Cameron’s role in a Royal Canadian Mounted Police investigation. It was looking at alleged kickbacks in the federal government's purchase of helicopters and Airbus jets.

The Mounties had assigned Cameron a code number, but she said she was never a confidential informant. In July 2007, Justice Then released his decision, finding that an RCMP chief superintendent who was heading the probe had acted in good faith in according Cameron informer status.

Monday, August 22, 2011

"It's all about the money all the time!" ..... Kevin O'Leary

All in the family!

Taibbi on Olbermann: SEC Covering Up Wall Street Crime

August 17, 2011

The dueling courts!

Original version arranged and played by Eric Weissberg (Steve Mandel on guitar) from the Movie Deliverance starring Jon Voight, Burt Reynolds, Ronny Cox and Ned Beatty. Remember?

And the winner is ..... The Harper government!

Good Day Readers:

When Ronald Reagan was President a couple of his senior Cabinet Ministers began feuding in public. When asked by a reporter who would win his response, "I will." Will the Harper government do the same?

Ever notice we rarely hear of this happening between/among judges in Canada? Office politics being what it is one would think surely it must occur from time to time. Our Manitoba judges must be one big happy family.

Clare L. Pieuk

Tax and Federal Courts’ turf war goes public

By Cristin Schmitz
August 26 2011 Issue
Guy Du Pont speaks at the CBA Conference in Halifax. [Photo by Cristin Schmitz / The Lawyers Weekly].

The Federal Court is accusing the Tax Court of Canada of attempting a power grab behind the Federal Court’s back.

The long-simmering rivalry between the two national trial courts erupted into public view at the annual meeting of the Canadian Bar Association (CBA)’s governing council in Halifax on August 13.

After a sometimes heated debate between CBA council members respectively representing the Tax Court’s Bench and Bar Liaison Committee and the Federal Courts’ Bench and Bar Liaison Committee — and at which the Federal Court’s Associate Chief Justice Simon Noel sat silently in the front row of the audience — a divided CBA Council backed off renewing its call for the expansion of the Tax Court’s exclusive jurisdiction.

The influential 37,000-member organization first called for expansion of the Tax Court’s exclusive jurisdiction in 2008.

However, the council decided to postpone voting until its meeting next February on a new resolution sponsored by the Tax Court’s Bench and Bar Liaison Committee and the CBA’s tax and charities sections.

The resolution was tabled following complaints from the Federal Courts’ Bench and Bar Liaison Committee that the liaison committee, the Federal Court and the Federal Court of Appeal were not informed of nor consulted in advance about the proposal that the CBA renew its efforts to persuade the federal government to take away all tax-related matters from the Federal Court and Federal Court of Appeal.

The longstanding issue has sparked another rift at the top echelons of the Federal and Tax Courts — two courts now served by a single Courts Administration Service but which have butted heads many times in the past. Indeed, when the most recent proposal from the Bar to expand the Tax Court’s exclusive jurisdiction first came to the Federal Court’s attention last month after the CBA publicly posted the proposed resolution on its website, acting Federal Court Chief Justice Noel fired off a letter to federal Justice Minister Rob Nicholson.

In the July 15 letter obtained by The Lawyers Weekly, the Federal Court’s acting Chief Justice protests that the Tax Court’s leaders have apparently recently asked the government to consider giving all tax jurisdiction to the Tax Court exclusively  —without informing or consulting the Federal Court (or Federal Court of Appeal) whose tax jurisdiction would consequently be eliminated.

“I have unofficially been informed that the Chief Justice and/or the Associate Chief Justice of the Tax Court of Canada have recently written to you requesting that you consider the transfer of jurisdiction of all tax matters from the Federal Court to their court,” acting Federal Court Chief Justice Noel writes. “Such a request involves the jurisdiction of the Federal Court and must call for the participation of all Federal Courts and its Chief Justices.”

He suggests that “through proper discussion, the request made by the Tax Court of Canada representatives can be assessed in a transparent and full manner, having regard to the interests of all institutions and stakeholders and the broader jurisdictional context within which this isolated request is situated. It may be that other avenues may be considered which would serve our common objective of ensuring that the administration of justice is both effective and financially and administratively situated.”

When asked by The Lawyers Weekly whether the Tax Court did in fact ask the government to consider transferring all tax matters solely to the Tax Court, the acting Chief Justice of the Tax Court, Associate Chief Justice Rossiter, responded “the Tax Court of Canada has no comment, and will not have any comment, on what, if any, communications it has with anyone on the jurisdiction of the Tax Court of Canada.”

Notwithstanding any jurisdictional wrangles between courts, giving exclusive original tax jurisdiction to the specialized Tax Court is a move which most tax practitioners support for the sake of their clients, says Montreal’s Guy Du Pont, who moved the resolution. “I am a little disappointed, to say the least,” Du Pont told The Lawyers Weekly after the resolution was shelved for six months.

During the CBA’s council meeting, Du Pont argued passionately that consolidating all tax matters within a specialized and expert court will improve cost, efficiency and service to taxpayers.

However, in an exclusive interview, Federal Court acting Chief Justice Noel challenged the contention of Du Pont and other tax lawyers that unifying all tax jurisdiction within the Tax Court will improve taxpayers’ access to justice.

“It’s a hypothesis. It’s their own opinion,” he told The Lawyers Weekly. “They pass their value judgment on a situation that has not been tested.”

He said he has not heard any complaints about his court’s handling of tax matters.

The Federal Court’s judges were “surprised and puzzled” to learn that the CBA’s Tax Court Bench and Bar Liaison Committee did not consult with its counterpart Federal Courts Liaison Committee before seeking the support of the CBA’s Council for its resolution. Such internal consultations are normally routine. Moreover, there was “absolutely no consultation” with the Federal Court or the Federal Court of Appeal, Justice Noel said. He said this was the second time that consultation with the Federal Court has been overlooked — alluding to 2008 when the CBA’s then-president, Bernard Amyot, wrote to Nicholson requesting that all original tax jurisdiction be transferred to the Tax Court.

Justice Noel emphasized, however, that the issue of the courts’ jurisdictions is one for the government and Parliament to decide.

That sentiment was forcefully echoed during The Lawyers Weekly interviews with acting Tax Court Chief Justice Rossiter and Federal Court of Appeal Chief Justice Pierre Blais, who participated in CBA events in Halifax but did not attend the council meeting.

“We could have many opinions, but the opinion that prevails is the opinion of government.” Chief Justice Blais told The Lawyers Weekly.

At the same time, consultation with the courts and other key players is useful, he suggested. Chief Justice Blais said his court’s aim is to provide the best service to citizens and taxpayers. “And I think we do it,” he noted. “We’re on time. We provide services across the country everywhere. We do fine right now…so if other people believe that we should make some changes, the onus is on them to demonstrate that something should be changed.”

In successfully persuading the CBA’s council to table the resolution, Ottawa lawyer Susan Beaubien, a member of the Federal Court’s Bench and Bar Liaison Committee, noted that “judicial review, in fact, is what the Federal Court does every day. To make this change by carving out part of this jurisdiction is a major substantive change and there has not been an opportunity for full and transparent consultation to take place with interested stakeholders.”

When he responded three years ago to then-CBA president Amyot’s brief requesting that the Tax Court’s exclusive jurisdiction be expanded, Justice Minister Nicholson wrote that such reforms “would best be considered in the context of an overall policy review.”

Nicholson’s July 4, 2008 letter obtained by The Lawyers Weekly says, “In addition to the broad range of substantive legal policy issues raised by your proposal, consideration would also need to be given to the potential impact of such expanded jurisdiction on the workload of the Tax Court and to the implications of the additional administrative and judicial resources that might be required to undertake a greater case load.”