Candid Conversations with Supreme Court of Canada Judges

On February 6, I had the honour to attend the program “Candid Conversations on the Challenges and Seizing Opportunities in the Practice of Law Today”, held by the Ontario Bar Association. It was an honour to hear from Justice Moldaver, Justice Cote, and Justice Wagner of the Supreme Court of Canada.

Program participants were divided into three groups, and the judges rotated through each group. A multitude of topics were discussed, including career insights and the role of the judiciary. Below are a few interesting comments I heard:

  1. Think outside the box when arguing for a change in the law. Judgments have a shelf life.
  2. Be resilient.
  3. Preparation is key. You can never be too prepared when arguing a case.
  4. To attract business, it is important to be seen in the business community.
  5. Don’t feel stuck in a practice area or firm. There is flexibility. The path of life is filled with the improbable. When one door closes another one opens. It just might be an unexpected door.
  6. There is no certainty in the courtroom.
  7. There are no small cases. Only small lawyers. (reference to the quote – no small parts, only small actors). Every case is important.
  8. You don’t have to have your name in lights to help people get through the morass of laws.
  9. To keep the public’s faith in the judicial system, we have to explain to the public what the courts do, who the judges are, where they come from, and why we do things a certain way. The court needs to communicate with the public. Courts need to be transparent.
  10. The essential ingredient in the judicial system is faith. Without faith in the judicial system, there will be anarchy.
  11. People take news from social media now. We have to update the judicial system’s communication with the public to reflect that.
  12. Lawyers need to be more creative with their fee structures. We are starting see self-represented litigants trickle up to the appellate levels at higher rates.

 

 

(The views expressed in this blog are my personal views and do not reflect the views of any organization)

None is too Many

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“None is too many.” That was the famous Canadian response to the question of how many Jewish refugees could enter Canada during the Second World War. During that time, only 5,000 Jewish refugees were allowed to enter Canada, while six million Jews died.

In December 2016, Toronto Jewish Holocaust survivors spoke out about the atrocities in Syria and the need to do more. Holocaust survivor Vera Schiff said: “You see those pictures come out of there with all this heartbreak with those maimed and crying children. It breaks my heart because I can see the replay of those children, of our children which were lined up to be gassed in the camps and the mothers who could not save them.”

Now one month later, President Trump has signed an executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States“. The order states: “I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.”

The Order has plunged the world into chaos, strained diplomatic ties, and further fractured the American people. An Article by the New York Times titled “Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide” tells the story of lives turned upside down by a poorly thought out decree. People worried about returning home to the United States while away on travel. People suddenly denied entrance into the United States after months of being vetted.

Trump’s decree is truly disturbing and is laced with the same xenophobia experienced by Jewish refugees decades ago.

Closeted Sexists 

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Why did Trump win? There are multiple theories out there. Populace thinking. People’s ignorance. Human stupidity. Hatred for Hillary. And sexism. 

Sexism is alive and well. For some men and women, the idea of a woman being President is just too much to handle. 

It makes me wonder how many people out there are closeted sexists too. Afraid to announce that they too think a woman is unfit for leadership. 

The Case of the Stolen Jewellery

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This week Kim Kardashian made headlines. It went far beyond her normal headlines. She was robbed. In the middle of the night. In a foreign city. In a secluded hotel. In a shocking manner. Most likely by a gang of organized criminals. The execution: perfect. The legal remedy: predictable.

So who might she sue?

First, she can sue the hotel for failing to have adequate security measures and by creating a situation of danger. Then she can sue the hotel’s employees for failing to take proper care of her and by allowing danger to unfold.

Second, she can sue her own security team for failing to properly watch her or perhaps for breach of contract (depending on the terms). Rumour has it, her security team left her completely unattended as they guarded her sisters in a nightclub.

Third, she can sue her own insurer if they refuse to reimburse her for the stolen jewellery (assuming she has insurance).

Fourth, assuming she has inadequate insurance, she can sue her advisers for failing to reasonably advise her of her insurance needs.

But what about the defendants?

The defendants might argue that she was the author of her own misfortune. That she was the careless one. That she invited this danger. She endlessly paraded around her jewels. She bragged to the world about her whereabouts. She took picture after picture of herself wearing expensive diamonds. She invited cameras to capture her in all of her wealth. And she pursued constant attention from television, to books, to pictures, to apps, to selfies, to Instagram, to Snapchat, to Twitter, and beyond. Thereby allowing the perpetrators to plan the perfect scheme.

Injury aside, I look forward to the reality tv show “Kardashian vs the Hotel: the saga of the stolen jewellery”. They say it will be her best work to date.

 

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.”

 

 

 

 

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

 

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.

A Tech Woman’s Fall From Grace

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In some ways Silicon Valley is similar to law. Many go into it hoping to strike it rich. Later realizing that only a few individuals accumulate such ostentatious wealth. And of those individuals that strike gold only select few are women.

In fact in an Above of the Law article “Meet The Richest Lawyers In America (2014)” all of them were men.

So when women achieve affluence they stand out. Elizabeth Holmes was one of them. In 2003, Holmes started Theranos. Theranos claimed that it could test blood by using only a few drops of blood, making needles and vials a relic of the past.

Holmes raised over $700 million from investors. At one point Theranos was valued at $9 billion, with Holmes being attributed a net worth of $4.5 billion.

However, in October 2015, critics of Theranos became vocal. The Wall Street Journal reported that Theranos had exaggerated the potential of its technology and medical experts questioned the science behind it. In a matter of months, the company’s valuation dropped billions of dollars.

Currently, the company is valued at around $800 million, about on par with the money invested in it. Holmes’ net worth is now valued at $0.

I hope for her sake and for the sake of medicine that the science behind her blood testing technology is sound. But, many doubt that it is.

Some people claim that the media was complicit in  Theranos’s fall and its rise. In Silicon Valley, writers are granted access to new technologies. But if they ask unauthorized questions, they risk being banned from covering future releases. So the danger of being cut-off silences reporters. Keeping them in a constant state of lip service to new technologies. This lip service allows technology companies to grow bigger and bigger until one day they don’t. Making the fall that much harder. And that much more humiliating.