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.

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