Summaries for Upper Year students

According to Greening Greater Toronto, an initiative from the Toronto City Summit Alliance, commercial buildings  like those that house some of Canada's top law firms  account for approximately one-third of greenhouse gas emissions in the Greater Toronto Area (GTA). Commercial buildings also consume 37 per cent of the electricity and 17 per cent of the natural gas.

There's lots of attention paid to residential programs that promote recycling and energy efficiency, says Linda Weichel, managing director of Greening Greater Toronto. But it was determined [by research from the Toronto City Summit Alliance] that not enough attention is given to the commercial sector yet.

This is really a case where a lot can be done to reduce the environmental impact, but, for a number of reasons, not a lot has been done.

As part of Greening Greater Toronto's mandate to tackle the issues surrounding the environmental impact of commercial buildings, the Greening Our Workplaces Tenant Series launched in March with a presentation by Gowling Lafleur Henderson LLP on the success of the firm's energy-saving initiatives.

The program aims to bring together building owners and tenants to discuss what can be done to make workspaces throughout the GTA greener.

There didn't seem to be a lot of communication going on between those two groups, says Weichel. And there also wasn't a lot of communication between tenants  [they] were working in isolation from each other rather than working together.
Weichel adds that one of the messages being presented during these meetings is that reducing environmental impact of commercial space is not only doable, but there is a business case for making these types of changes.

Stikeman Elliott LLP launched their GoingGreen Program in 2008, and subsequently became the first national law firm in Canada to be certified Carbon Neutral. As hosts of the second meeting of the Tenant Series on May 27, firm representatives spoke with other Commerce Court tenants about the success of their green initiatives.

Since the initiation of the GoingGreen Program, Stikeman Elliott has implemented many firm-wide changes with a focus on reducing their environmental impact  specifically with an eye towards energy efficiency.

From something as simple as having sleep modes on printers and copiers to more extensive projects like installing 230 motion sensors in boardrooms and offices, the firm has taken a broad-based approach to going green.

A big thing we've done was to have a green committee in each of our offices, says Jean McLeod, chief administrative officer at Stikeman Elliott. People are obviously really engaged in environmental issuesso we have a long list of things that are constantly going through to see what more can be done.

Recently, the firm hosted its annual Six-Shooter Saturday party at the Calgary Stampede  but this year's event had a distinctively green hue. By implementing various green policies, nearly 6,600 litres of recyclable and compostable material was collected  diverting waste from landfills.

Over 600 guests enjoyed filtered water in lieu of bottled water  an initiative the firm has also implemented in their offices throughout the country  which saved approximately 2,000 bottles during the event alone. Other green touches included 100 per cent biodegradable plates, cutlery and napkins, as well as compostable biopolymer cups and complimentary public transit tokens for the ride home.

Being environmentally conscious is a year round commitment, said Lou Cusano, Stikeman's Calgary managing partner, in a press release about the event. Green policies are only effective when consistently implemented, even when we step outside the office to have a bit of fun.

Another message Greening Greater Toronto is trying to send out, says Weichel, is that businesses do not have to have huge capital investments in order to make the types of changes that firms like Gowlings and Stikeman Elliott have made.

It's just being conscious of how people conduct themselves in the workplace, she says. There's a lot that can be done just based on understanding the pattern of activity in the space.

For example, says Weichel, the way a space is oriented can reduce energy consumption. By placing workstations close to windows, the high traffic areas will have more natural lighting.

Both McLeod and Weichel agree that there is a business case for going green, even if a capital investment is made.

Businesses don't have to make capital investments, stresses Weichel, but if they want to there are financial incentives available.
According to McLeod, Stikeman Elliott worked with the BOMA Toronto Conservation and Demand Management program to help offset some of the capital costs of their GoingGreen initiatives.

McLeod adds that the investment they made towards energy efficiency was returned in about two years.

The firm also saved over 6 million sheets of paper in 2009 alone by simply setting the printers' defaults to print double-sided. Not only does it save paper and waste, it also reduces the amount of energy that goes into printing, adds McLeod.

The benefit of implementing sound environmental practices extends beyond the firm's bottom line.

It's great for recruitment, McLeod points out. It's also great for the engagement of the [employees] that we have because [they] feel a part of it  they feel they're able to make a contribution.

In fact, Stikeman Elliott was identified as one of the Green 30 organizations by Hewitt Associates earlier this year. The list is based on a feedback directly from employees.

McLeod also adds that there has been a lot of positive involvement from the firm's leadership group, saying the partnership board has been very supportive of the initiatives from the beginning.

The feedback from firm's clients has also been positive, since companies in all business sectors are looking at best practices when it comes to the environment.

A lot of what we're doing we share with [clients]. But a lot of it is learning from each other and seeing what other people are doing  is there low hanging fruit or are there other things that are more substantive that we could be doing.

This sharing of knowledge and experience is built directly into the message that Greening Greater Toronto is trying to spread on Bay Street and throughout the GTA.

Measuring energy use or having a sense of behaviour and its impact is a great starting place, Weichel says. But, it's really about starting the conversations if they haven't been started already.
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Should privilege extend to communications between tax accountants and their clients? As there is no tax without law, advising on the law is what tax accountants do. The English Court of Appeal is now examining whether privilege should be based on the nature of the advice or the qualifications of the person providing it.

In Canada, only communications with lawyers attract privilege. Our law treats client communications concerning tax differently depending on whether the client is communicating with a lawyer or a chartered accountant. This may seem illogical: both lawyers and accountants belong to highly skilled and regulated professions, and confidentiality is a hallmark of both. However, Canadian courts have not been sympathetic to accountants' claims of equal treatment.

In the leading case by the Federal Court of Appeal, Tower v. M.N.R., [2003] F.C.J. No. 1153, accountants were told that while confidentiality may be preferred, the tax accountant-client relationship is in no way as fundamental to society and the administration of justice as the solicitor-client relationship and that no overriding policy consideration exists so as to elevate the advice given by tax accountants to the level of solicitor-client privilege.

In England, a case currently under reserve in its Court of Appeal, Prudential v. Special Commissioner of Income Tax, [2001] 1 All E.R. 1113, suggests that the issue may be looked at afresh. In Prudential, the accountants claimed that what they were doing was functionally equivalent to what lawyers do.

The judge at first instance held that he was bound by the precedent that legal privilege was only associated with the advice of lawyers on tax law. However, he noted in modern conditions accountants have the expertise to advise on tax law and it is firms of accountants, rather than firms of solicitors, who (often) do give such advice and represent clients in disputes with the Revenue on many aspects of their tax affairs and accountants do what lawyers are described as doing in the cases that establish legal professional privilege.

The judge commented that differential treatment from a privilege point of view was illogical. He went on to add, however, that this might mean that rather than extending privilege to the advice of tax accountants, one could question whether privilege should continue for the advice of tax lawyers in the area of tax planning.

His observations of how advice is provided in the tax arena emboldened accountants as to the possibility of an appellate change in the law. They caused consternation among tax lawyers that their ancient rights to privilege were threatened. The regulatory bodies of both accountants and lawyers intervened at the appeal stage. There is every reason to expect that the matter will find its way to the new U.K. Supreme Court.

The most recent case in our Supreme Court on privilege is R. v. National Post, [2010] S.C.J. No. 16. There, the court refused to recognize a new, broadly based journalists' privilege. Its decision was based, in part, on the fact that journalism does not have any formal professional mechanism for licensing or regulating its members. As well, there was no general requirement or practice that journalists promise confidentiality to their sources. In contrast, the professional structure of the chartered accountancy profession in Canada is virtually indistinguishable from that of the legal profession. The requirement of confidentiality on client affairs is written into its codes of conduct.

The court in National Post went on to hold that although there was no general journalistic privilege, privilege might arise for particular communications if the four general criteria, known as the Wigmore criteria, were met on the facts. The essence of these criteria is that the communication must have been made in confidence, confidentiality must be essential to the relationship, the relationship must be one that is to be sedulously fostered and the public interest in protecting the confidentiality of the communication must outweigh the need for disclosure.

Arguably, the first three criteria are often met in advice provided by chartered accountants on tax issues. The fourth criterion  involving balancing is less certain. The Supreme Court has held that the balancing exercise will involve the evidence presented by the parties and also judicial notice, common sense and good judgment.

Although it is unlikely that Canadian courts will recognize a class privilege attaching to tax accountant communications, it is possible that a case-by-case privilege may be recognised. For example, communications to a tax accountant relating to a reassessment or a voluntary disclosure issue might be more likely to attract privilege than would garden-variety advice from an accountant recommending a tax shelter investment.

The possible re-examination of the law in England and the principles-based approach to privilege enunciated by our Supreme Court in National Post both suggest we have yet to hear the last word on tax accountant privilege.

John Chapman is a commercial litigation partner with Miller Thomson LLP in Toronto. Adam Stephens is a partner at the same firm whose practice encompasses a wide range of commercial litigation with a focus on shareholders' rights and real property law.

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Most drug litigation to date has centred on conventional pharmaceuticals  ​small and simple chemical drugs. A valuable, but more complex, prize will be on the table more often in future drug wars: biologic drugs.

Human growth hormone and the blood booster, erythropoietin, are two examples of famous protein biologic drugs that have already been copied. Many companies are developing copies of other biologic drugs, eagerly anticipating patent challenges or patent expiration in the coming years.
Billions of dollars are at stake internationally in the race to copy biologic drugs. Governments are under intense pressure to regulate this area.

Special rules for biologics

Copying a biologic is not straightforward, unlike a conventional pharmaceutical. Biologic drugs are often large and structurally complex. A copy of a biologic can potentially be similar to the innovator, but it won't be equivalent. For this reason, the copy is called a biosimilar drug.

Biosimilar companies want to get government marketing approval as fast and inexpensively as possible. They want to rely on the innovator's clinical data on the assumption that it shows that both the innovator drug and a biosimilar would be safe and effective. No biosimilar company wants to generate its own clinical trial data from scratch. Clinical trials are time consuming and can cost hundreds of millions of dollars. In contrast, innovators want biosimilars to provide substantial clinical trial data. The extent to which a biosimilar can rely on an innovator's clinical data is a key battleground.

Biosimilars in Europe, Canada and the U.S.

The European Union is a leader in regulation of biosimilar approvals. It approved biosimilars for human growth hormone, filgrastim and erythropoietin. Legislation and detailed guidelines have facilitated approval of biosimilars by reliance on innovator clinical data.

The U.S. Food and Drug Agency (FDA) approved a growth hormone biosimilar in 2006, but emphasized that this did not establish a pathway for approval of other biosimilars. The growth hormone drug is relatively small and its mechanism of action had been extensively studied. The regulatory implications for other biosimilars remained unknown.

Health Canada approved the same growth hormone biosimilar in April 2009. There was also no clear Canadian guidance on a biosimilar approval framework.

Even though there was no U.S. or Canadian legislation in place, the approval of biosimilar growth hormone was significant because it indicated that biosimilars would be allowed to rely on innovator drug clinical trial data to a certain extent.

The path ahead

As 2010 began, there was still no clear biosimilar approval pathway in the U.S. and Canada. The U.S. had endured several past failed attempts at legislation. Health Canada had circulated draft guidance (policy) documents for public review and comment.

Health Canada finalized its guidance document in March 2010. It set out principles for biosimilar approval by reliance on innovator clinical data. Typically, Health Canada would require a new drug application to include comparison studies against the innovator drug as well as other types of supplemental testing.

Around the same time, the U.S. government passed the Biologics Price Competition and Innovation Act. It provided criteria for a biosimilar drug to rely on innovator clinical data. A biosimilar would need to show that it is highly similar to the innovator product with no clinically meaningful differences in safety, purity and potency. The Act also provided a 12-year exclusivity period to innovator companies. Biosimilars cannot be approved during this period. There is also a procedure to address patent infringement issues.

The FDA received the power to decide that certain complex products will not be eligible for biosimilar approval  the copier will have to conduct its own extensive clinical trials. At the other end of the spectrum, certain biosimilars may be similar enough to the innovator product to be designated by the FDA as interchangeable.

This means that they may be substituted for the innovator biologic, for example by a pharmacist, without a doctor's approval. The FDA would require that the risks or diminishment in efficacy are low before designating a biosimilar as interchangeable. This will be a high standard requiring that i) the biosimilar produce the same clinical result as the innovator biologic, and ii) no increased risk is created by switching to the biosimilar.

These regulatory concepts are quite general. Many challenges still remain for regulators to determine the specific principles that will be used in the evaluation and approval of biosimilars. Expect the debate to heat up as the FDA consults industry, special interest groups and the public to get feedback on implementation of the legislation.

Noel Courage is a partner at Bereskin & amp; Parr LLP in Toronto. He is a U.S. and Canadian patent agent whose practice involves drug patent and regulatory issues.

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Barely a week after abandoning a lawsuit that sought to dissolve a provincial commission of inquiry into Quebec's system of nominating judges, former Justice Minister Marc Bellemare testified under oath that Liberal Party fundraisers, with the consent of Premier Jean Charest, pressured him to appoint two loyal Liberals to the bench and to promote a third as assistant chief justice to the Court of Quebec.

In explosive testimony before the commission headed by former Supreme Court of Canada Justice Michel Bastarache, Bellemare also alleged that on the day he announced he was resigning in 2004, Charest reminded him that he was sworn to secrecy and could not disclose information regarding the role that party fundraisers played in nominating judges.

But under cross-examination on the second day of hearings from commission lead counsel Guiseppe Battista, Bellemare conceded that he had no corroborating evidence nor witnesses to back up allegations that rocked Quebec's legal and political circles. The only evidence he produced were cryptic notes he scrawled on a piece of cardboard while watching a hockey game on the day of his resignation, which he said he tucked away and forgot about.

Maybe there are people who at the time were aware of this and could confirm it to you, but I don't have documents or audio or video of that, said Bellemare, who appointed four judges to the Court of Quebec and promoted three during his tenure as justice minister from April 2003 until April 2004.

The inquiry was launched after Bellemare alleged last April that influential Quebec Liberal Party fundraisers tainted the judicial appointment process six years ago, with Charest's blessing. Charest fought back. On the same day that the premier appointed Bastarache to preside over a commission of inquiry into Bellemare's allegations, Charest launched a $700,000 suit against the former justice minister for false, malicious and defamatory remarks.

Though begrudgingly appearing before the Bastarache commission, Bellemare has not shied away from naming names. He dropped a suit to torpedo the inquiry he described as a costly and useless exercise only after obtaining an agreement that guaranteed his testimony would be broadcast. Bellemare testified that retired lawyer and businessman Franco Fava and chartered accountant Charles Rondeau pressured him on several occasions between July 2003 and August 2003 to make the right nominations. Bellemare added that Fava's pressure was colossal, and led him to call the premier on Sunday, Aug. 24, 2003 to request a meeting. On Sept. 2, 2003, nearly four months after the Liberals took office, Bellemare said that he met with the premier in a one-on-one meeting.

Bellemare testified that during the meeting he complained to Charest that pressure was being exerted on him to appoint Marc Bisson, a Gatineau, Que., lawyer and the son of a prominent Liberal organizer in the Outaouais, and Line Gosselin-Després, the cousin of former Labour Minister Michel Després, to the Court of Quebec. Bellemare said he was also pressed to appoint Judge Michel Simard as assistant chief justice to the Court of Quebec.

Bellemare has not disputed that all three jurists were competent and qualified for their appointments.

Justice Bisson was appointed to the Court of Quebec in November 2003, the same month that Justice Simard was promoted. Justice Gosselin-Després was appointed to the juvenile division of the Court of Quebec in January 2004.

Who appoints the judges in Quebecis it Franco Fava? Bellemare said he asked Charest during the meeting held at the premier's office. According to Bellemare, the premier replied that Franco is a personal friend, an influential party fundraiser. We need people like him. If he says to appoint Simard and Bisson, then do it.

Yet in spite of the pressure he alleges he faced to nominate certain judges, Bellemare testified that Quebec's judicial appointment process has its virtues.

I think our system is correct and functions well, said Bellemare. There are three stories for three nominations which had problems. No more. I consider them incidental errors endorsed by my premier. I said that's politics, unfortunately.

The three Court of Quebec judges who allegedly were nominated or promoted due to undue pressure will continue to sit on the bench during the inquiry hearings, said Renée Desrosiers, interim assistant to Elizabeth Corte, Chief Justice of the Court of Quebec.

The Bastarache commission will have no impact on the Court of Quebec's operations, whose regular activities will continue normally, said Desrosiers, reading from a prepared statement prepared by Justice Corte's office.

Bastarache commission spokesperson Guy Versailles declined to confirm or deny whether the three judges touched by the allegations have already been or will be interviewed by the inquiry's counsel. He also refused to state whether they will be asked to testify, pointing out that the names of witnesses are published on the inquiry's website a week before their scheduled appearance.

We do not disclose who we interviewed to protect their privacy and reputation, said Versaille. If we choose not to hear them before the public inquiry, the meeting we had with them holds no public interest. That is the course of action we have adopted, and one we intend to follow.

The Conseil de la Magistrature du Québec, an independent body that supervises the conduct of judges and organizes training programs for them, does not intend to look into the matter. According to André Ouimet, secretary of the conseil, the independent body only examines cases in which complaints have been officially lodged against judges that sit on the Court of Québec, the Professions Tribunal, the Human Rights Tribunal and municipal courts. I do not recall the conseil ever examining a case in which it lodged a complaint itself, said Ouimet.

A retired judge who spoke on condition of anonymity pointed out that the three judges who allegedly were appointed due to undue pressure by party fundraisers were described by Bellemare himself as being competent and qualified to hold the positions.

Their competence is not disputed, said the former judge. There is no question that these three judges are very well-regarded and well-thought of by the legal community. It's really unfair for them to be in that position.

The former judge added that while these may be trying times for the three judges who have been cited by Bellemare, they will no doubt continue to work diligently as they have for the past seven years.

A judge faces many circumstances during his career that are not easy, like rendering an unpopular decision. It takes a courageous judge to apply the law as he sees it, knowing he will be bashed in the media the next day. You have to live with that.

I have no doubt that these people have the moral fortitude to continue to do their work, with the same competence that they've been doing, said the former judge.

The commission, after hearing Bellemare testify for two days, had adjourned until Aug. 30, giving the Commission's counsel several days to sift through Bellemare's testimony, particularly since the former justice minister refused to be pre-interviewed.

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All quotes translated from French by the author.

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