Changes in Court Process due to COVID-19 Social Distancing

This post is from an interview with lawyer Heather Hui-Litwin, co-founder of Self-Rep Navigators. It is posted on Self-Rep Navigators website.

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Courts in Ontario have implemented changes to accommodate the rapidly evolving Covid-19 situation. Lawyer Heather S. Douglas explains to Heather Hui-Litwin (Self-Rep Navigator Co-founder) what these changes are.

QUESTION 1: What is the current situation on court closure? Are all Ontario courts closed or just GTA? Which website is best for this update?

ANSWER: Around March 16, 2020, the Ontario Superior Court of Justice, the Ontario Court of Justice, and the Small Claims Court suspended all hearings until further notice. Only emergency matters will be heard by the court. It is my understanding that all scheduled matters up to May 31, 2020 are adjourned, except for urgent matters. https://www.ontariocourts.ca/scj/

QUESTION 2: So, what is considered an “urgent matter”?

ANSWER: The following is considered an urgent matter: public health and safety, child and family protection matters, and urgent civil matters where there is significant financial repercussions if there is no hearing. https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

The Supreme Court of Canada is allowing filing of all documents by email. https://www.scc-csc.ca/ar-lr/notices-avis/20-03-eng.aspx

In my opinion, the best place to find information is the Twitter page: https://twitter.com/SCJOntario_en

QUESTION 3: Court procedures have all kinds of deadlines. Do you know what the court is doing about this? For example, what if you want to sue someone, and the limitation period is due say next week, what should you do?

ANSWER: Under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, section 7.1(2), an order was made to suspend any limitation period for the duration of the emergency. The suspension is retroactive to March 16, 2020. Any provision of any statute, regulation, rule, or bylaw establishing any period of time in which a step must be taken in Ontario, subject to the discretion of the court, tribunal, or a decision maker, is suspended from March 16, 2020 for the duration of the emergency.

QUESTION 4: Has the Law Society of Ontario changed the new client intake identification and verification requirements to accommodate self-isolation?

ANSWER: The Law Society of Ontario has provided the following guidance:

At this time, the client identification and verification requirements of By-Law 7.1 continue to apply. However:

  • Lawyers and paralegals should review the information below as they do not need to verify the identity of their clients for all matters.
  • If only client identification is required, lawyers and paralegals are able to comply with their professional obligations without meeting face-to-face or via video conference.
  • As a result of COVID-19, until further notice, the Law Society will interpret the requirement that lawyers and paralegals verify the identity of their client face-to-face as not requiring the lawyer or paralegal to be in the physical presence of the client. Rather, alternative means of verification such as face-to-face verification via video conference will be permitted. Nonetheless, lawyers and paralegals should conduct a risk assessment to ensure that it is appropriate in their circumstances to verify identity via video conference. If a lawyer or paralegal chooses to verify identity via video conference, they should also attempt to manage some of the risks associated with this practice as outlined below…

 

Should Judges Confront Big Companies for Failing to Pay Jurors for Time Off Work?

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Jury duty is an obligation dreaded by some and evaded by others. Medical reasons, familial obligations, travel plans, and the loss of an income are some of excuses used to avoid jury duty.

Recently, Justice Robert Goldstein of the Ontario Superior Court of Justice in Toronto wrote to Canadian Tire about their policy on paying jurors. While presiding over jury selection, a prospective juror told Justice Goldstein that Canadian Tire would not pay them while performing jury duty. In response Justice Goldstein wrote a letter to Canadian Tire’s general counsel, Jim Christie, and Timothy Tallon, the owner of the St. Clair West franchise.

The Toronto Star reports that the letter stated:

I find it surprising that Canadian Tire’s policy is that payment while on jury duty is a ‘company benefit… Citizens who serve on juries are not receiving a benefit; they are doing a civic duty. Trial by jury in serious criminal matters is a fundamental cornerstone of our democracy… It is vitally important that citizens be able to participate in the administration of justice in their communities, with the support of their employers… virtually all large Canadian corporations — including large franchised corporations — pay their employees while they fulfil their civic obligation to do jury duty.

I agree that employers should pay their employees while off work for jury duty. Currently, the Juries Act, RSO 1990, c. J. 3 states that every employer must allow their employee time off work if summoned for jury duty, with pay or without pay (section 41).

I can see how maddening it would be for judges to see large corporations take advantage of a loophole and fail to pay their employees while on jury duty. Especially if that company frequently uses the services of the court. However, is it okay for a judge to call a company out in the absence of a court case?

The Ethical Principles for Judges does not provide specific guidance on this issue. In the commentary, the Ethical Principles for Judges state that “While the ideal of integrity is easy to state in general terms, it is much more difficult and perhaps even unwise to be more specific. There can be few absolutes since the effect of conduct on the perception of the community depends on community standards that may vary according to place and time.”

Although Justice Goldstein’s comments could be seen as crossing a line, I think he raises an important point. Large corporations should be encouraging their employees to perform their civic duty by paying them fairly. Perhaps the problem isn’t the commentary but the law itself. The law needs rewriting.

(Views are my own and do not reflect the views of any organization. This post was originally posted on slaw.ca)

Should Law Society Fees Be Progressive?

Recently lawyer Elsa Ascencio @elsaasce tweeted about the Law Society fee structure. In her initial tweet she pointed out that the fees prevent her from servicing her clients.

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In response, many lawyers chimed in. Jessica Prince @jesshwprince tweeted that the barristers in England and Wales have a progressive fee structure based on last year’s earnings. Lawyer Rob Kittredge @RobKittredge pointed out that the annual fees in some American states range from around $100 to $535. “Illinios: $99. Minnesota: $114-$250. NY $60-$275. California: $535. Florida: $265. Colorado: $325.”

Elsa has started a petition to change the fee structure. To learn more: click here

I agree with Elsa that the Law Society fees should be progressive. However, if the Law Society institutes a progressive fee structure, then how do we verify the accuracy of lawyers’ earnings, especially given the increase in professional corporations?
(Views expressed are my own and do not reflect the views of any organization.)

#LawNeedsWellnessBecause

Recently the #LawNeedsWellnessBecause hashtag was trending on Twitter. Lawyers weighed in on why mental health should be a priority. Amongst the #LawNeedsWellnessBecause tweets, the structure of how lawyers practice was pointed to as a contributor to stress, anxiety, and burnout.

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Despite the structural factors influencing mental health, there is almost an exclusive focus on fixing the individual. In the article “How mindfulness privatised a social problem: The £3.4trn industry encourages a preoccupation with the symptoms of mental illness, rather than their social causes,” Hettie O’Brien in the New Statesman discusses this issue.

O’Brien quotes Purser who argues that mindfulness has become the perfect coping mechanism for neoliberal capitalism. “It privatises stress and encourages people to locate the root of mental ailments in their own work ethic. As a psychological strategy it promotes a particular form of revolution, one that takes place within the heads of individuals fixated on self-transformation, rather than as a struggle to overcome collective suffering.” There is a pre-occupation with the symptoms of stress, rather than overcoming the social causes of stress.

I am not suggesting that mindfulness, medication, exercise, eating well and sleeping well are not important. But when it comes to practicing law, we must also look at the structural factors that create burnout.

There are small ways that we can begin to make changes. For example, Borden Ladner Gervais recently started having an onsite counsellor to help their employees and to help change the conversation around mental health.

At the end of the day, #LawNeedsWellnessBecause “If I am not for myself, who will be for me? If I am not for others, what am I? And if not now, when?” (Famous quote from Rabbi Hillel)

(Views are my own and do not represent the views of any organization. This post was originally posted on slaw.ca)

In Praise of the Honourable Justice Clement Gascon

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Recently, the Honourable Justice Clement Gascon of the Supreme Court of Canada addressed his momentary absence from work on May 8th, 2019.

For over twenty years, I have been dealing with a sometimes insidious illness: depression and anxiety disorders. This is an illness that can be treated and controlled, some days better than others. On the afternoon of Wednesday, May 8, affected both by the recent announcement of a difficult and heart-rending career decision and by a change in medication, I conducted myself in an unprecedented and unaccustomed manner by going out without warning and remaining out of touch for several hours. I can neither explain nor justify what I understand to have been a panic attack, and I wish to apologize most profusely to all those who suffered as a result. This health issue has been taken care of and treated with the necessary medical support. I confirm that I am in good health, and am fully capable of performing my duties as a judge.

Justice Gascon’s remarks are laudable. By being open about his personal health, Justice Gascon has reduced the stigma in our profession around discussing depression and anxiety. Two illnesses which affect many lawyers.

In the CBC article, titled “Successful lawyers more likely to experience mental health problems, Toronto study finds”, the writers note that a University of Toronto study compared two national surveys of thousands of lawyers in both Canada and the United States. “In both countries, researchers found a strong correlation between signs of depression and traditional markers of career success. Lawyers holding down jobs at large firms in the private sector, widely considered to be the most prestigious roles, were most likely to experience depressive symptoms.” The larger the firm, the more lucrative the position, the higher the odds that the lawyer suffered from depressive symptoms. This was partly attributed to the skewed work-life balance at larger firms.

Similarly in the New York Times article, The Lawyer, The Addict, Eilene Zimmerman, discusses the plight of lawyers. Her ex-husband’s death from a drug overdose happened, despite (maybe because of) his success as an intellectual property lawyer in Silicon Valley.

Zimmerman indicates that the heavy stress on him and the pressure to compete, meet client demands, gain clients, all contributed to his drug abuse. “The history on his cellphone shows the last call he ever made was for work. Peter, vomiting, unable to sit up, slipping in and out of consciousness, had managed, somehow, to dial into a conference call.”

Peter’s struggle is not unique. Zimmerman highlights a 2016 report from the Hazelden Betty Ford Foundation and the American Bar Association on substance abuse amongst lawyers. “Over all, the results showed that about 21 percent of lawyers qualify as problem drinkers, while 28 percent struggle with mild or more serious depression and 19 percent struggle with anxiety.”

Professional stress contributes to the rates of substance abuse amongst lawyers. The adversarial process of the opposing side constantly trying to “undo your work” only adds to the stress.

Despite the prevalence of anxiety and depression amongst lawyers, there is a culture of silence. Professor Daniel Angres states in the New York Times article that “Law firms have a culture of keeping things underground, a conspiracy of silence,” he said. “There is a desire not to embarrass people, and as long as they are performing, it’s easier to just avoid it.”

What’s even more troubling is that that the deterioration of lawyers’ health often begins in law school. Zimmerman points out that law students tend to shift their focus in law school. They shift their focus from the value of helping people to extrinsic factors. These extrinsic factors include: grades, honours and potential career income. However, the value of grades, honours, and income have little influence on a lawyer’s overall mental health. In response, law schools are starting to address improving the mental health of their students.

Similarly, as a profession, we are just beginning to break down the “conspiracy of silence” around mental health. I admire Justice Gascon in contributing to the dismantling of this deadly silence.

(Views are my own own and do not reflect the views of any organization. This article was originally posted on slaw.ca.)

Celebrating the Everyday Lawyer

 

Benchmark Litigation recently posted this list of the top trial lawyers in Canada.

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Twitter was abuzz. Many people questioned the selection of the lawyers. Not over competence. The lawyers selected are all outstanding trial lawyers. But whether a list composed of almost all white men was truly representative and unbiased. IMG_7671IMG_7672.jpgIMG_7673.jpg

In the journal article, “Why Women: Judging Transnational Courts and Tribunals” by Kathryn Stanchi and Bridget J. Crawford, diversity on the Bench is discussed.  In the article, Stanchi and Crawford comment on the selection criteria of judges. They comment that the selection process is tainted by elitism and bias. Their comments about the selection of judges can be applied to the selection of lawyers for awards. In the article, the authors write that:

Federal judges, for example, tend to be chosen from prestigious clerkships and big corporate law firms, two professional enclaves that tend to favor white, wealthy and male candidates. The more than 1300 sitting federal judges overwhelmingly attended Harvard (140 judges) and other elite law schools. These elite law schools – including Yale, Columbia, Stanford, Berkeley, NYU – tend to skew white and wealthy… Every step leading up to that first appointment to the bench – from academic indicators to standardized testing and beyond – embeds race, class and gender bias…

While calling for more “women” in the judiciary may yield a short-term gain, the real work lies in broadening the definition of who is “qualified” to be a judge. That requires open acknowledgment of the biases inherent in the admissions processes that lead to judicial positions: elite law schools, clerkships, prestigious law firms and other gate-keepers. Otherwise, the effort will yield only female judges who “are able to construct a biography that somewhat approximates the male biography…

Why did we think that women would transform institutions without simultaneously — or alternatively — being transformed by them? Why did we believe that women appointed to positions of power would be ‘representative’ of women as a group, rather than being those who most resemble the traditional incumbents and are thus considered least likely to disturb the status quo?” Catharine MacKinnon has long observed that the women who benefit from feminism’s emphasis on formal equality are “mostly women who have been able to construct a biography that somewhat approximates the male norm . . .. They are the qualified, the least of sex discrimination’s victims.”

Stanchi and Crawford recommend that to improve diversity on the bench we should consider people who have faced “discrimination based on race, class, disability, immigration status, gender identity, sexuality or other personal identities beyond biological sex.” 

Similar to the appointment process for judges, we should consider lawyers from various backgrounds in handing out awards. We should celebrate lawyers that perform everyday legal work, and not just award lawyers working on large cases. Helping individuals with everyday matters is just as important and deserving of applause. And should be encouraged. However, the lawyers that tend to work on the sexy projects that get the most attention and award buzz are often the ones that have benefited from a process tainted by bias and elitism. 

(Views are my own and do not represent the views of any organization.)

 

 

Highlighting Bencher Candidates for the 2019 Election

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I would like to highlight 3 Bencher Candidates, who I think would make excellent Benchers: Isfahan Merali, Addison Cameron-Huff, and Rebecca Durcan.

The Law Society of Ontario is governed by a board of directors, known as Benchers. Benchers set policy related to the governance of Ontario’s lawyers and paralegals. Benchers also hear discipline cases regarding the conduct, licensing, competency, and capacity of lawyers and paralegals.

 

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The first candidate is Isfahan Merali. Isfahan Merali has an impressive track record. She is an incumbent Bencher and senior counsel at the Consent and Capacity Board. As a Bencher, Isfahan has been the Chair of the Tribunal Committee, Vice-Chair of the Equity and Indigenous Affairs, member of the Priority & Planning Committee, and member of the Challenges Facing Racialized Licensees Working Group, among other roles. She is also a member of the Mental Health Strategy Task Force and an adjudicator with the Law Society Tribunal.

Isfahan brings a deep understanding of mental health and how it affects the practice of lawyers. Helping lawyers’ mental health improves the quality of legal services provided to the public.  Iahan brings a deep understanding of mental health and how it affects the practice of lawyers. Helping lawyers’ mental health improves the quality of limg899_Huff

Addison Cameron-Huff is a blockchain lawyer. He understands technology better than most lawyers. He has worked as a software developer and has launched several online legal businesses, including a global law search. It is important that Benchers understand technology to improve access to justice.

Addison was interviewed about his platform. Below is an excerpt of his interview.

What inspired you to run for bencher this year?

Software is changing every industry. Lawyers need to understand technological issues and the legal regulator ought to have that understanding too. I can provide this input because of my many years as a programmer and a lawyer working for the technology industry (more specifically, blockchain businesses). As a bencher I will ensure that legal professionals don’t miss out on the benefits of technology.

What do you believe is the biggest issue facing the legal profession?

The number of people in Ontario who aren’t being assisted by legal professionals is the biggest issuing facing our profession. Unserved/underserved people are a multi-billion dollar opportunity for licensees and a travesty for the affected people. We can do better as a profession and as a society.

 

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Rebecca Durcan is a lawyer who focuses solely on professional regulation. She is “attuned to national and international regulatory trends.” As a lawyer who practices in professional regulation, she has acted as an adjudicator, prosecutor, and independent legal advisor for tribunals. If elected as Bencher, Rebecca plans to improve access to justice, continue with governance review, increase diversity of the profession, and increase transparency.

Rebecca notes in her platform that the “the Law Society can invest in technological innovation so the legal system becomes more accessible and less expensive for Ontarians. This may result in less actual interface with lawyers. However, the role of the Law Society is to determine what is best for the public interest as opposed to the interest of the profession.”

I believe that embracing technological solutions, considering alternative business structures, and investing in mental health are critical to fulfilling the Law Society of Ontario’s mandate and improving access to justice. I hope that the Benchers elected in 2019 embrace these goals.

 

(Views are my own and do not reflect the views of any organization.)