Moving Forward: From Ink Quills to Electronic Documents

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This weekend I attended the Ontario Bar Association Annual General Meeting  (AGM) as a Provincial Council Member. The AGM brought together lawyers from across the province, from different practice areas, and from different career stages. This led to invigorating discussions about the future of our profession.

A significant topic was the Law Practice Program (an alternative program to the traditional articling program in law firms). The Law Society of Upper Canada recently released a report commenting on the viability of the Law Practice Program. As a reason for possibly scrapping the program, it was stated that graduates of the Law Practice Program are seen as second tier to traditional articling graduates.

At the AGM, many individuals argued that the perception that graduates of the Law Practice Program are second tier is nonsense. This is because the program offers standardization and acts as a check on the unregulated nature of articling in private practice. Furthermore, traditional articling is rife with problems, which arise from its inherent structure. The problems mentioned echoed the sentiments written by Professor Adam Dodek in his 2013 article “The Ethics of Articling“.

It seems to me that the recommendation that the Law Practice Program be scrapped and that articling be shortened is a move by the Law Society to inch towards an American style practice of qualifying lawyers (i.e. no articles, tough bar exam).

Another topic of discussion was the modernization of the court system. This year the President of the Ontario Bar Association David Sterns plans to keep the Attorney General’s “feet to the fire” and shine a light on changes to the court infrastructure. As someone who frequently writes about electronic filing, I welcome this goal.

To end, I would like to echo Colin Stevenson’s (Chair of the Policy & Public Affairs Standing Committee) eloquent statement that “while we are bound by history, we need to be firm on progress.”

 

 

 

 

Overwhelmed by Rhetoric

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“Four legs good, two legs better! All Animals Are Equal. But Some Animals Are More Equal Than Others.”
― George OrwellAnimal Farm

As lawyers it is easy to fall in love with our words. We live and die by the pen. But when it comes to building a great case, I’ve been told that it is best to take out all of the superfluous rhetoric, all of the editorial comment (opinion), and instead focus on the facts.

When focusing on the facts ask yourself: “is there another way to look at the evidence?”And from there develop key phrases.

A great example comes from a lawsuit involving a swimming pool. Many years ago a young boy was in a city pool that suddenly went from shallow water to deep water. After crossing from the shallow end to the deep end, he drowned to death. The lawyer defending the city called the divide in the pool “the safety ledge”. This phrase was so powerful that despite the negligent design, the city was found not liable. And the ledge was considered a safety feature (a death trap by today’s standards).

When used properly, in conjunction with the facts, word choice can define a case. No one forgets the beautiful saying “If it doesn’t fit, you must acquit.”

Canada’s Most Important Challenge to Healthcare

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“There was no difference between men, in intelligence or race, so profound as the difference between the sick and the well.” – The Great Gatsby 

What is the best way to run our health care system? Is it privatized? Hybrid? Or, Public?

Right now, in British Columbia Dr. Brian Day is challenging the very way we fund essential health care services. He argues that the province’s ban on the purchase of private insurance for essential medical procedures is unconstitutional. As the ban requires many patients to endure gruelling wait times, thereby exacerbating their medical conditions. The trial is predicted to go for 6 months.

Eventually, the case will be appealed to the Court of Appeal and then to the Supreme Court of Canada (its true destination). The Supreme Court of Canada’s decision will have national ramifications, and may change the way we fund health care across the country.

“Dr. Day argues that Canada’s inefficient system is the product of a wasteful bureaucracy, a lack of competition and a misguided attachment to universal coverage.”

Although it could be said that a lack of competition has fostered a lower level of customer service from doctors, this lack of competition has allowed the government to keep health care costs down. Doctors are prevented from charging too much, and the costs of administration are controlled.

Regardless of how this case resolves, I predict that a hybrid system for essential medical services will continue to creep in. Technology is eroding the boundaries of provincial control, the baby boomer generation is aging, and the economy feels as unstable as ever. All of these conditions are creating a time of uncertainty and are paving the way for change.

I personally have huge concerns about the erosion of the public health care system. The ramifications of which will be felt by the most marginalized.

Poor. Rich. White. Black. Jewish. Christian. Criminal. Saint. Heterosexual. Homosexual. No matter how we identify or are identified, we are all entitled to health care. And not just any health care, but good health care.

Hell Hath No Fury Like a Woman Scorned

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In Toronto Life Magazine, there’s an article about Eleanor McCain, the heir to the McCain fortune. She is currently divorcing Jeff Melanson, former president and CEO of the Toronto Symphony Orchestra. In their divorce proceedings, she is claiming that he tricked her into marriage and is requesting an annulment on that basis.

An annulment would allow her to avoid paying him anything. According to the marital contract, he is entitled to $5 million (a paltry sum for a family worth $2 billion). Yet she is fighting him for every dime, hiring private investigators to dig up his past, paying the best lawyers to fight for her, and smearing his name across the country.

It is unlikely that she will convince a judge to grant her an annulment. It would be hard to show that she married him by reason of fraud or duress. She is a wealthy woman, with every advantage at her disposal. If she wanted to investigate him beforehand, she could have. No one held a gun to her head and forced her to marry him. To somehow say that she was duped into this marriage is a stretch.  What it really sounds like is a severe case of buyer’s remorse. Someone quick – call the doctor and cure her of that.

To read more, click here: Public Enemies – McCain and Melanson

 

What I Wish Someone Told me in Law School

I wish someone told me that the practice of law can be all consuming, that incentives rule decisions, that the billable hour can become someone’s raison d’etre, that the practice of law can be isolating, and that the practice of law is mostly 90% grunt work and 10% “magic”.

But mostly I’m glad no one did. I may not have entered practice. And I may not have learned the best lesson of all: that the pursuit of being an excellent lawyer (a critical thinker) is the best pursuit of all.

Living in a World of Words

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Lawyers live in a world of words. Precision is key. And so, it is the very bending of those words that turns an honest story into a distorted story.

An example of a distorted story is the Amber Heard – Johnny Depp saga. It was a tale of “he said – she said”. All played out in the court of public opinion. At first, Johnny Depp’s team claimed that it was all a ploy for money. Then, Amber Heard started releasing videos and photographs depicting violence. Eventually their lawyers reached a deal, and the divorce was settled.

But it was the behaviour preceeding the deal that was the most unsettling. As stated in the blog LaineyGossip:

“Johnny Depp’s legal team accused Amber of lying about all of this for financial gain. In the end, those gains aren’t staying in her bank account. But Johnny Depp had people willing to testify on his behalf, his bodyguards who were there on the last night they were together, ready to claim in court that none of that sh-t went down. What does that say …[about the] people who surround…Johnny Depp?”

Lawyers must challenge their clients. It is the job of lawyers to be detectives. To dig beneath the statements of their clients and to reveal the truth, even as unsightly as it may be. It is a disservice to the courts for lawyers to take their clients’ words as gospel. Even worst, it is a disservice to the courts for lawyers to then peddle those lies in the courtroom.

Slinging untrue accusations, weaving tales glued together by lies, or simply leaving a misguided impression with a judge is wrong. In fact it is the very lifeblood of sneaky behaviour. And it deserves being called out, named, and shamed.

Law Gurus and Questioning State Authority

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There is a new breed of litigants in town. They go by different names: freemen-on-the-land, sovereign men, sovereign citizen, etc. But at their core, they are the same. They refuse to recognize the authority of the courts or the authority of the government.

These vexatious litigants are guided by gurus. Gurus that claim that by unlocking secret principles, “hidden from the public, but binding on the state, courts and individuals”, people can avoid unwanted obligations, like taxes or child support or criminal sanctions.

These gurus peddle secret principles. And of course  these “secret principles” can be anyones, for a small payment to the guru. Kind of like paying a psychic to lift a curse. A curse that no one else can see but the psychic.

In Meads v. Meads, 2012 ABQB 571, Justice Rooke states that the gurus disseminate their ideas in seminars, books, websites, and instructional DVDs and other recordings. “Latin maxims and powerful sounding language are often used. Documents are often ornamented with many strange marking and seals. Litigants engage in peculiar, ritual‑like in court conduct. All these features appear necessary for gurus to market [their] schemes to their often desperate, ill‑informed, mentally disturbed, or legally abusive customers… [The] scheme is not intended to impress or convince the Courts, but rather to impress the guru’s customer.”

However, unlike a psychic’s power these secret guru principles are eventually tested in court. But, these principles are quickly shot down by judges.  Once a judge “strips away the layers of peculiar language, irrelevant references, and deciphers the often bizarre documentation which accompanies [the] scheme”, it becomes clear that nothing with substance grounds these ideas.

Justice Rooke then lists some questions that anyone thinking of hiring a guru should ask:

 Why do these gurus seem to have little, if any, wealth, when they say they hold the proverbial keys to untold riches?

Why do those gurus not go to court themselves, if they are so certain of their knowledge? If they say they have been to court, ask them for the proceeding file number, and see if their account is accurate. Those are public records.

Can that guru identify even one reported court decision where their techniques proved successful? If not, why then are all successes a tale of an unnamed person, who knew someone who saw that kind of event occur?

How are their ideas different and distinct from those surveyed and rejected in these Reasons?

How are these advisors different from the [] gurus who have been unsuccessful and found themselves in jail?…

Will your advisors promise to indemnify you, when you apply the techniques they claim are foolproof? If not, why?

If they cannot explain these points, then why should you pay them for their legal nonsense?

I would add: if something seems too good to be true, then it probably is. “Only two things are certain in life: death and taxes.” And no guru can change that.

But, I must say I find gurus’ questioning of state authority very interesting. We should always be examining the basic premises of our laws, including the Hobbesian/Locke/Rousseau conception of state authority. But such questioning of where state authority comes from, and whether it comes from some fictitious social contract or from some other source, is better left to the philosophers.

No Damages For A Commitment Phob’s Worst Nightmare

It’s a tale as old as time. Man meets woman. Woman gets pregnant. Man feels trapped. Except this time, the man asks for money. “Money for what?” – you ask. Money to compensate him for the emotional trauma of the “unplanned pregnancy”.

In PP v DD, 2016 ONSC 258, Justice Perell described their courtship. They dated for about two months. The man (an ER doctor in his late thirties) felt that she was not right for him. So after about two months of dating, he breaks off the relationship. She then texts him a couple weeks later advising him that she is ten weeks pregnant. The man then sues her.

He states in his statement of claim that he was deceived. She told him that she was on the birth control and basically he did not sign up for this. He was waiting to meet the woman of his dreams and have babies with her, not this pretender. At paragraphs 25, Justice Perell excerpts the man’s claim.

  1. The representations by DD that: (i) she was taking birth control as prescribed and directed; (ii) she did not want to get pregnant; and, (iii) she did not want to have a baby were deliberate, willful, and conscious distortions of the truth. DD made those false statements with the knowledge that they are untrue. DD intended to deceive PP. DD intended that PP would rely and act upon the false statements. PP did so and, solely based upon the false statements, proceeded with sexual intercourse and intravaginal ejaculation. Consequently, DD became pregnantand has claimed that PP is the father of the child. DD brought about her pregnancy by deception. As a result, PP has suffered damages.
  2. PP consented to having sexual intercourse with DD. That consent, however, was expressly based on his understanding and belief that DD was taking the birth control pill as prescribed and directed and did not intend on getting pregnantor having a baby. PP would not have consented to sexual intercourse and intravaginal ejaculation had he known the true state of affairs. PP’s consent to sexual intercourse was procured by DD through her deception and dishonesty. Accordingly, that consent was vitiated.
  3. PP expressly enquired of DD as to whether she was “on the pill” because he had already made the clear and conscious choice not to father a child at that time. PP was just beginning his career as a physician; he was not at a stage of his life at which he thought he was “ready” to assume the responsibilities of being a father; he wanted to meet a woman, fall in love, get married, enjoy his life as husband with his wife and then, when he and his wife thought the time was “right,” to have a baby. The deceptions by DD deprived PP of the benefit of that choice.
  4. The actions of PP based on the deceit and fraudulent representations by DD resulted in damage to PP, the particulars of which shall be provided in the course of this proceeding in accordance with the Rules of Civil Procedure.
  5. DD committed an independently actionable wrong through misconduct that represents a marked departure from ordinary standards of decent behaviour. Her conduct was sufficiently malicious, high-handed and highly reprehensible such that it offends the court’s sense of decency. Accordingly, PP seeks and is entitled to an award of punitive damages to achieve the objectives of punishment, deterrence, and denunciation.

Justice Perell struck out the statement of claim. He framed his analysis in the tort of sexual battery and the tort of fraudulent misrepresentation, stating that fraudulent misrepresentation was not designed to compensate for this kind of emotional trauma. At paragraphs 39 and 45, he explains:

[39] The argument of DD’s challenge to PP’s Statement of Claim brought the clarity of what PP’s action is really about. In the guise of a fraudulent misrepresentation cause of action, PP seeks compensation for the non-pathological emotional harm of unplanned fatherhood. PP is not against being a father, but his passionate argument is that by DD’s fraudulent misrepresentation, he has been denied the opportunity to be a father at the time of his and future beloved’s choosing and he suffered non-pathological emotional harm as a consequence.

[45]           Fraudulent misrepresentation is typically classified as an economic or pecuniary loss tort, for which compensatory damages are designed to restore the person to the financial position he or she was in before the fraudulent misrepresentation. Apart from having to pay child support, which subject to proof of paternity, he is no longer seeking to avoid, PP does not have any financial losses and none are particularized in his Statement of Claim. PP is not married to DD. He is not obliged to marry her. He is not a spouse under the Family Law Act, R.S.O. 1990, c. F.3, because he never cohabited with DD and he never established a relationship of any permanence with her. PP will not incur any financial losses from DD’s pregnancy and the birth of a healthy child, and he will experience no disruption of his career as a doctor. PP was not infected by any venereal disease and he does not plead that his emotional harm was pathological in nature.

Justice Perell’s analysis of the tort of sexual battery and the tort of fraudulent misrepresentation is excellent, as always. And he rightfully strikes out the statement of claim, stopping the ridiculous litigation in its tracks.

At the heart of his decision is the protection of a child from his/her idiotic parents. “The facts are salacious and ignobly pleaded, and I made the confidentiality order because I was concerned that the child that is at the heart of the history might someday read the decision, self-identify, and be traumatized.”

At the heart of this decision is the protection of future children from future bad parents. If every father could sue the mother of a child that got pregnant without his knowledge, then I suspect that there would be a lot of lawsuits of this nature. And sometimes there’s no place for the “courts in the bedrooms of the nation”.

Dressing for the Law

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“Vain trifles as they seem, clothes have, they say, more important offices than to merely keep us warm. They change our view of the world and the world’s view of us.”- Virginia Woolf

Clothing defines us. It marks us. It deceives us. In “January: A Woman Judge’s Season of Disillusion” by the Honourable Marie Corbett, she discusses the process of robing, and it’s transformative power.

“…—attire that served to advertise the social, professional, or intellectual standing of the wearer like “labels in a grocer’s shop,” with every button, rosette, and stripe having significance. Woolf describes a judge chiding a woman litigant for imprudent dress while he himself is wearing a scarlet robe, an ermine cape, and a vast wig of artificial curls. He lectured the woman without any consciousness of sharing her “weakness.”
I finished garbing myself and glanced in the mirror. Woolf’s concept notwithstanding, there I was—in men’s clothes, ready to administer men’s laws.”

While reading January, the power of the judge’s uniform becomes increasingly apparent. The judicial robe strips judges of their individuality and marks them with power. All while separating them from their former lawyer peers, making judging an incredibly isolating process.

In January, you can sense the isolation that Corbett faces throughout her rigid, routine days. She describes dressing and undressing repeatedly throughout the day. Dressing to go to work. Dressing to appear in court. Dressing to go to lunch. Dressing to go back to court. Dressing to go home.  A day of dressing and undressing. A day of small transformations. And after years of this routine, Corbett no longer thought of her role as searching for the truth. Instead, she describes herself as “the impartial referee, the decider of facts on the evidence that the lawyers brought before me. No, not a search for truth.”

Judges only know what lawyers present. They are tied to the strength of their skills. They cannot research the facts on their own. She describes  moments of bad lawyering before her, futile cross-examinations, poor opening arguments, tedious presentations of evidence.

“University Avenue gave me time to think about the hospital, where the ill and the injured sought health and recovery, and the courthouse, where the wronged and the accused sought justice and truth. Two hives of dis-ease: one physical, the other social. I was moving from one pathological environment to the other: from doctors to lawyers—from white to black—from cancer to crime.”

January is an incredible book. It provides an opening into the minutia of judging, humanizing the people behind the judicial garb.

 

 

 

 

 

Presence & Memory

Litigation looks backwards. It involves piecing together moments of the past. All in the hopes of constructing an accurate and persuasive narrative. Usually at the heart of this process is memory. And parties often replay the moment at the centre of the lawsuit repeatedly.

In Presence by Amy Cuddy, she writes that the more anxious and self-focused someone is during an interaction, the more likely someone is to replay the interaction after the fact. But the moment that someone is ruminating over isn’t even real – “it’s a seriously flawed memory of an interaction”, especially if someone was anxious during it. Memories become warped and full of holes. This leads people to take mangled memories and mangle it even further. We should be concerned about this phenomenon.  Often times the moment in dispute in the lawsuit is one experienced under stress and anxiety.

The best way to counteract the flawed memory is to  look for independent evidence of the event. Memory is second best to independent proof. Memory is simply an imperfect reconstruction of events.