In the Peel fight, big firms probably mean big bills

The Yukon government announced late last week that it has retained a large Toronto law firm to handle its appeal of the Yukon Supreme Court's decision on land use planning in the Peel watershed.

The Yukon government announced late last week that it has retained a large Toronto law firm to handle its appeal of the Yukon Supreme Court’s decision on land use planning in the Peel watershed.

The firm that the government has hired – Torys LLP – is one of the largest in the country and maintains offices in New York City and several Canadian cities.

Wherever you stand on the Peel appeal, it is fair to ask questions about what this means for taxpayers and whether it is cost-effective to hire a Bay Street firm for a case like this.

It is well known that large firms are expensive in comparison to their smaller counterparts (fancy glass skyscrapers and big firm overhead, you know) so the decision to retain one is not one to be taken lightly. Unless the big firm is willing to offer a deal on its fees, it is important to carefully evaluate whether or not you actually need one for the matter at hand. Simply switching lawyers already means some additional cost, as the new lawyers need to get up to speed on the case.

A big law firm can be extremely useful in certain situations.

The first is when the facts of a case are complex and numerous. A small firm would quickly be overwhelmed by the sheer quantity of documents if it attempted to litigate the construction of the SkyTrain or handle the merger of Tim Hortons and Burger King. A large firm, on the other hand, can marshal the resources to handle these matters.

But the facts in the Peel case are not complex or particularly contentious. The “findings of fact” took up only five pages of Judge Veale’s 92-page decision, so it is difficult to see what a big firm brings to the table in that regard.

A large firm may also be needed if the subject was of such a technical or specialized nature that few, if any, lawyers outside of large firms practice it. Tax, securities and patent law would fall into this category.

Aboriginal law does not. There are many knowledgeable, skilled practitioners outside of “big law” – including the government’s previous counsel, John Hunter – who could more than capably explain the relevant law to the appellate courts.

So why did the government decide to hire a large firm to handle its appeal?

Since hearing the news I’ve imagined Premier Darrell Pasloski banging on the table in front of his deputies demanding the “best darn lawyer money can buy.” There is a strong possibility that this decision was taken because, in the minds of Pasloski’s cabinet, bigger and more expensive is better and therefore more likely to be successful in the appeal.

As I’ve opined before, the Yukon Party seems to have a vastly over-exaggerated sense of the Peel decision’s precedent-setting value. As soon as the decision was released the government attempted to spin its decision to appeal as being about the decision’s implications for future land use planning. I’m not sure whether Pasloski’s erroneous insistence that this case has significant implications for the authority of public government over land use is a public relations strategy or a genuine misunderstanding of what Justice Veale actually said.

The good news for those who want to see the Peel protected is that this is hardly a “game changer,” and they should not be intimidated. The government’s chances of success in its appeal are probably the same as they were before. Ultimately this decision will be made by justices of the appellate courts, who are astute legal minds in their own right and will look carefully at the law before making up their own minds.

As a citizen, I’d prefer that the government not appeal Judge Veale’s decision, but as a lawyer I do not agree with those who believe that this appeal is “wasteful.” As I’ve written before I think the government has an arguable appeal of the part of the Supreme Court decision, which effectively binds the government to follow the land use planning commission’s restrictive plan for the region.

But the government should always seek to minimize its litigation expenses. Without the terms of the government’s retainer with its new counsel – which is not yet complete – it is hard to know what this change means for taxpayers. The Department of Justice’s outside counsel policy, which governs lawyers contracted by the government, sets the maximum hourly rate of $325 per hour unless a higher rate is approved by the assistant deputy minister.

The conventional wisdom in the legal community is that big firms mean big bills. It is always possible that the government secured some sort of a deal.

My only hope is that the government has considered the interests of taxpayers in negotiating with its lawyers, because it is difficult for me to see anything more than a marginal improvement in its prospects.

Kyle Carruthers is a born and raised Yukoner who lives and practises law in Whitehorse.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Commissioner of Yukon Anglique Bernard, in her role as Chancellor of the Order of Yukon, announced the 2020 Order of the Yukon inductees in a statement Dec. 2. (Crystal Schick/Yukon News)
Order of Yukon inductees announced

Ten Yukoners will receive territory’s highest honour

The primary goal of the new relief package for tourism operators is to support the tourism sector, whether they’re private industry or not-for-profit organizations, said Tourism and Culture Minister Jeanie McLean. (Crystal Schick/Yukon News file)
Relief program offers funds for businesses that rely on tourists for more than half their revenue

Two new streams of funding, in addition to the accommodation relief program, were announced

Yukonomist Keith Halliday
YUKONOMIST: Climate emergency, lite edition

Back in September 2019, Whitehorse City Council declared a climate emergency, to… Continue reading

Yukon Employees’ Union says a lack of staff training and high turnover at the Whitehorse Emergency Shelter is creating a dangerous situation for underpaid workers. (Crystal Schick/Yukon News file)
Yukon Employees’ Union says lack of training at emergency shelter leading to unsafe situations

Health and Social Services Minister Pauline Frost said the staffing policy “is evolving”

Justice Karen Wenckebach will begin serving as resident judge on the Yukon Supreme Court early next year. (Crystal Schick/Yukon News)
All-female justice roster ‘a good step’ for diversity in Yukon Supreme Court

Karen Wenckebach is the third woman appointed to the Yukon Supreme Court in history

A sign outside the Yukon Inn Convention Centre indicates Yukoners can get a flu vaccine inside. As of Dec. 4, the vaccinations won’t be available at the convention centre. (Crystal Schick/Yukon News)
Whitehorse Convention Centre ends flu vaccination service early

Flu vaccinations won’t be available at the Whitehorse Convention Centre after Dec.… Continue reading

asdf
Today’s mailbox: Kindness, shingles and speed limits

Letters to the editor published Dec. 4, 2020

ASDF
COMMENTARY: Land use planning must include industry

Carl Schulze Special to the News This commentary is a response to… Continue reading

Whitehorse City Hall. (Joel Krahn/Yukon News file)
City hall, briefly

A look at decisions made by Whitehorse city council this week

Nominations continue to be open for Northern Tutchone members of the White River First Nation to run for councillors in the 2021 election. (Maura Forrest/Yukon News File)
White River First Nation to elect new chief and council

Nominations continue to be open for Northern Tutchone members of the White… Continue reading

The Town of Watson Lake has elected John Devries as a new councillor in a byelection held Dec. 3. (Wikimedia Commons)
Watson Lake elects new councillor

The Town of Watson Lake has elected John Devries as a new… Continue reading

The new Little Salmon Carmacks First Nation council elected Dec. 1. (Submitted)
Little Salmon Carmacks elects new chief, council

Nicole Tom elected chief of Little Salmon Carcmacks First Nation

Submitted/Yukon News file
Yukon RCMP’s Historical Case Unit is seeking information related to the unsolved homicide of Allan Donald Waugh, 69, who was found deceased in his house on May 30, 2014.
Yukon RCMP investigating unsolved Allan Waugh homicide

Yukon RCMP’s Historical Case Unit is seeking information related to an unsolved… Continue reading

Most Read