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Gemma Smyth, 2012 1-1 Canadian Journal of Poverty Law 145, 2012 CanLIIDocs 721

Vaillancourt's book is reviewed in the context of the Social Assistance Review in Ontario.

Roderick A Macdonald, Gemma Smyth, Maggie Liddle, Jenny Buchan, Tracy Wilcox, Dale Dewhurst, David Newlyn, Liesel Spencer, Mary J Shariff, Vanessa MacDonnell, 2012 6 Canadian Legal Education Annual Review, 2012 CanLIIDocs 705

In the past decade or so, one has seen an increase in the use of the term “inquisitorial” with it becoming de rigueur for many instances of non-adversarial decision-making in the administrative state. The phenomenon of terming non-adversarial administrative process as inquisitorial, is not peculiar to Canada. In other Commonwealth jurisdictions where the adversarial tradition prevails, such as Australia and the UK, a similar phenomenon has occurred. Similarly, in the United States, the Supreme Court has labeled the federal Social Security adjudicatory scheme an inquisitorial procedure, owing in part to the investigatory nature of the Administrative Law Judge. Despite the classification, in most jurisdictions around the world, the meaning of the term “inquisitorial” refers to many different concepts and processes that often do not replicate the pure inquisitorial model that originated in the Civil Law tradition. This article reports on an international research workshop that brought together academics, policy-makers, and judges who have served as Commissioners of public inquiries, to discuss polyjural decision-making in the administrative state. Participants stemmed from traditionally adversarial and inquisitorial jurisdictions, generating innovative comparative insights on hybridized administrative process and institutional design, in relation to hearing processes, legislative oversight, ombudsman, public inquiries and administrative investigations. The conference website can be found at: http://www.uwindsor.ca/law/inquisitorial-processes/ .

Judicial dispute resolution is common in family courts, where it usually consists of informal efforts to bring about settlement in pre-trial conferences. Many judges are especially eager to promote settlement in child custody and visitation cases. This paper will critically evaluate informal JDR in parenting disputes, by asking whether and to what extent it is in the best interests of the children involved. It begins by identifying several features which distinguish custody and access disputes from other types of civil litigation, and which are relevant to the normative analysis of JDR in this context.

Victor Kattan’s “From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891-1949” is an archival excavation of the Israeli-Palestinian (Arab-Israeli) conflict and its origins. This review will examine the contours of Kattan’s book followed by a brief examination of objectivity in academic scholarship often enunciated through the concept of ‘balance’ as it relates to those scholars (like Kattan) working on the conflict. Finally, this review will explore some of the weakness of the arguments that Kattan advances.

North American family law conflicts are very often brought to mediation, in which a neutral third party attempts to bring about a voluntary resolution of the spouses’ dispute. Family mediation has many enthusiastic supporters, and has in many jurisdictions been made a mandatory precursor to traditional litigation. However, it has also given rise to a potent feminist critique, which identifies power imbalance and domestic violence as sources of exploitation and unjust mediated outcomes. This article summarizes the feminist critique of family mediation, and assesses the efforts of contemporary mediation practice to respond to it. Even in the absence of formal family mediation, litigating spouses are likely to be subjected to substantial informal pressure to settle from judges and other family justice system workers. The article argues that the feminist critique might be more relevant to this “settlement mission” than it is to formal family mediation as it is practiced today.

Client interviewing is a cornerstone of lawyer-client relationships, particularly in often high-conflict child protection matters. This practical article focuses on the initial interview of adult clients involved in child protection matters. Part I sets out the social context of interviewing caregivers. Part II describes the theories of client-centred and engaged client-centred lawyering employed throughout the paper. Given the context and theory, Part III sets out four key stages of interviewing that may prove difficult for new lawyers: rapport-building, fact gathering, reality checking and concluding.

Mediation in the case of elder abuse and mistreatment is increasingly employed in North America to resolve conflicts that disproportionately affect older adults. The attendant dangers of mediation in these cases require awareness of and sensitivity to issues facing older adults and their families, including elder abuse, ageism, and consent and capacity. This article charts the introductory stages of an elder mistreatment mediation project started through a law school-based mediation clinic. Responding to expressed local need, the project developed an Intake Guide that attempts to balance the autonomy of the older adult with safety screening. The model employs an interdisciplinary approach, with specialist social workers acting as advocates throughout the process. Lessons learned from the project include: the importance of training; the need for flexible and responsive approaches to mediation; the importance of a specialized intake and screening tool; the benefits of interdisciplinary, strengths-based approaches and the centrality of collaborative community relationships to ensure program sustainability.

The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

The number of lawyers who practice law in-house has significantly increased over the last thirty years in North America. While in this part of the world, in-house counsel are regulated in the same manner as outside counsel by their professional bars, the recent decision by the European Court of Justice (Grand Chamber) Akzo Nobel Chemicals Ltd et al. v. European Communities, reminds us that other parts of the world treat in-house counsel very differently. This paper analyses the justifications for a similar treatment of in-house counsel and outside counsel by the legal profession. While a detailed contextual analysis of in-house counsel’s functions reveals a likelihood of greater vulnerability in their ability to balance them with various ethical and professional duties, it also shows that outside counsel face similar ethical dilemmas that may vary in degree or in nature. The similar regulation of in-house and outside counsel is consistent with a poor articulation by the legal profession of the scope of the duty of professional independence from the client. And yet such duty exists. As it can conflict with paramount professional obligations, including the duty of loyalty to the client, its scope is controversial. Leaving the duty of professional independence from the client largely undefined is harmful to in-house and also outside counsel, their clients, the legal profession and the public interest. In-house counsel are in a privileged position to provide legal services in accordance with fundamental values of the legal profession. As such, their contribution needs to be better recognized and promoted. Generally, regulatory reform is necessary to nurture in-house counsel’s ability to provide legal services as integral members of the bar, while minimizing the risks that the privileged proximity to their clients present. Such reform will inevitably benefit outside counsel who face comparable issues. A clearer articulation of the meaning and scope of the duty of professional independence from the client, together with tangible mechanisms to actualize it, will provide greater support to in-house and outside counsel to better understand and integrate their various ethical and professional duties within their role. It will also benefit all interested parties.

Are existing ethical norms adequate to address the realities of class proceedings? In this paper, I explore the premise that existing ethical rules are effective when applied to the conduct of class action litigation. To do so, I draw upon extensive American literature on the subject, as well as Canadian jurisprudence and original research involving the interview of seven class action judges on questions of class action legal ethics. In Part I, I discuss the peculiar features of class proceedings and how they create unique – or exacerbate existing – challenges to the ethical conduct of litigation. In Part II, I confront the fundamental (and often overlooked) question: who is the client in a class proceeding, to whom ethical duties are owed? Having identified the range of judicial and academic views on the unique dimensions of class actions, I then turn, in Part III, to a discussion of the development of ethical rules that seek to respond to them. In the absence of amendments to formal rules of conduct, what are the sources of class counsel’s role morality? I discuss two: the strictures of class proceedings legislation, and judicial development of rules and guidelines. Throughout the paper, but especially in part III, I rely upon information and frank opinions conveyed to me by the seven judges interviewed for this project in the summer and fall of 2010, and in early 2011. I conclude with proposals for amendment to Ontario’s Rules of Professional Conduct that would more accurately address the realities of this model of litigation, and thereby provide clearer guidance to lawyers, the clients they serve, and the judges who play such a significant role in the cases that those lawyers prosecute.

Law students are the future of the legal profession. How well prepared are they when they leave law school to assume the professional and ethical obligations that they owe themselves, the profession and the public? This question has led to a growing interest in Canada in the teaching of legal ethics. It is also led to a greater emphasis on the development of clinical and experiential learning as exemplified in the scholarship and teaching of Professor Rose Voyvodic. Less attention, however, has been placed on identifying the general ethical responsibilities of law students when not working in a clinic or other legal context. This can be seen in the presence of very few Canadian articles exploring the issue, and more significantly, in the paucity of law school discipline policies or codes of conduct that set out the professional obligations owed by law students. This article develops an idea that Professor Voyvodic and I talked about on a number of occasions. It argues that all law schools should have a code of conduct which is separate and distinct from their general University code and which resembles, with appropriate modifications, the relevant set of rules of professional responsibility law students will be bound by when called to the Bar. A student code of conduct which educates law students about their professional obligations is an important step in deterring such conduct while in law school and preparing students for ethical practice. The idea of a law school code of professional responsibility raises a number of questions. Why is it necessary for law schools to have their own student code of conduct? The article provides a threefold response. First, law students are members of the legal profession and a code of conduct should reflect this. Second, it must be relevant and comprehensive in order to ensure that it can inspire students to be ethical lawyers. And, third, as a practical matter, the last few years have witnessed a number of incidents at law schools that raise serious issues about the professionalism of law students. They include, for example, the UofT marks scandal, the Windsor first year blog and the proliferation of blogs with gratuitous, defamatory and offensive entries. It is not clear that all of this conduct would be caught by University codes of conduct which often limit their reach to on campus behaviour or University sanctioned events. What should a law school code of professional responsibility look like and what ethical responsibilities should it identify? For example, should there be a mandatory pro bono obligation on students or a duty to report misconduct. The last part of the article addresses this question by setting out a model code of professional responsibility for law students.

This paper reviews the concept of equity's maxims in Canada. Recently, the Supreme Court of Canada has cited a number of maxims of equity and attributed to them the position taken by Spry, that the maxims reflect an ethical quality and values that inform the exercise of equity's discretion. In this paper I trace the development of the concept of equity's maxims to determine whether they have any relevance to courts today. I contrast treatment in the USA and suggest that equity's maxims still have some residual use in defining equity's distinctive methodology.

Jurisdictions that have created class action regimes provide as one of their justifications the promotion of behavioural modification or deterrence of wrongdoers. Peculiar to some class action regimes is the phenomenon of cy-pres distributions, in which the class counsel and judge choose a form of distribution for class members. The justification for cy-pres distributions is to ensure that a defendant receives nothing back from the monetary award and is thereby required to internalize the true cost of wrongdoing, or to disgorge the profits of wrongdoing. The cy-pres remedy is seen as furthering the deterrence function of class actions. I argue that it is difficult to find empirical evidence to substantiate the claim of behavioural modification in class action litigation. However, if courts are serious about deterrence, then I suggest that reorienting the focus of cy-pres distributions to properly account for behavioural modification may provide a better chance of that outcome.

Throughout Commonwealth jurisdictions, courts, initially relying upon their inherent jurisdiction, have created what are called Anton Piller injunctions or orders. These orders are akin to a civil search warrant. They require, on pain of being held in contempt of court, the defendant to permit the plaintiff entry to the defendant’s premises so as to secure property or documents for which the plaintiff has been able to demonstrate that there is a high risk of loss or destruction if the plaintiff had commenced its action with the usual filing of statement of claim and notice of suit. The order has been described as the ‘nuclear weapon of civil procedure’. The order arose in much the same fashion as the development of Mareva injunctions, or what are now known as ‘asset preservation orders’. Viewed as being at the extremes of a court’s powers, the orders have generated a great number of procedural safeguards, both as to what a plaintiff must prove to obtain the order as well as in its execution once obtained.What follows is a brief overview of the development of Anton Piller orders in Canada, together with some of the problems and solutions engaged by this extraordinary order.

“…it is both impressive and effective to understand the culture in which you are doing business and demonstrating that understanding to clients. ‘There are cultural sensitivities even when you are dealing domestically,’ said Neena Gupta, a partner with Gowlings in Waterloo who heads up the firm's India Practice Group. Such cultural skills – speaking another language, being familiar with another culture, having lived outside Canada – while often acknowledged as softer skills are still seen as an enhancement to core legal skills. “We are conscious of the fact that a candidate with linguistic ability and global awareness does bring something to the table that others do not,” said Gupta. That something is very good for the business of law.”

Notwithstanding Pierre Trudeau's famous quote from 1967 that the "state has no business in the bedrooms of our nation", adults in Canada who engage in certain kinds of consensual sexual activity in private continue to face the stigma of criminalization and, in some cases, the very real possibility of imprisonment.This comment examines two such situations: (i) section 159 of the Criminal Code and anal intercourse; and (ii) the judicial nullification of consent in cases involving S/M and other sexual practices, like erotic asphyxiation, as evidenced most recently in the case of R. v. A.(J.) which is currently before the Supreme Court of Canada.