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…

 

Small Claims Court Jurisdiction Increased to $35,000: What does this mean for current cases?

 

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Currently, the most someone can ask for in Small Claims Court is $25,000. Beginning on January 1, 2020, the Small Claims Court will increase its jurisdiction from $25,000 to $35,000.

Litigants who started a claim in the Superior Court can seek to transfer their case to the Small Claims Court if the amount sought is worth $35,000 or under.

Under the Courts of Justice Act, section 23, a litigant may transfer their case to the Small Claims Court by: filing with the local registrar of the Superior Court of Justice a requisition with the consent of all of the parties. To succeed, the claim must be for (a) money or the recovery of personal property and (b) the amount claimed must be equal to or less than $35,000. The requisition form can be found on the Ontario Court Forms website.

There is no requirement for litigants to transfer their case. However, plaintiffs have an incentive to transfer their claim to the Small Claims Court if they are seeking an amount for $35,000 or under. Under Rule 57.05, of the Rules of Civil Procedure, the court may order that the plaintiff shall not recover any costs if they recover an amount within the monetary jurisdiction of the Small Claims Court.

I anticipate that if you started your lawsuit but haven’t had your trial yet, you may be able to seek more money, up to $35,000. Under Rule 12 of the Rules of the Small Claims Court, “A plaintiff’s or defendant’s claim and a defence to a plaintiff’s or defendant’s claim may be amended by filing with the clerk a copy that is marked “Amended”, in which any additions are underlined and any other changes are identified.”

Filing and service of the amended document should take place at least 30 days before the originally scheduled trial date, unless, “(a) the court, on motion, allows a shorter notice period; or (b) a clerk’s order permitting the amendment is obtained under subrule 11.2.01 (1).” The Ministry of the Attorney General will likely post a bulletin on this matter in the coming months.

(Views are my own, and do not reflect the views of any organization and are not intended to be legal advice.)

 

 

Ontario Bar Association: Fall Council Meeting

Over the weekend, the Ontario Bar Association held its annual Fall Council Meeting. There were several amazing speakers. President Colin Stevenson spoke about the barriers to innovation and the ways companies are overcoming these barriers.

Barriers to innovation include:

  • The solitary work of lawyers. Lawyers tend to work alone, even in large law firms.
  • Lawyers tend to be risk adverse, and tend to be unwilling to invest in change.
  • Lawyers that are already successful are hesitant to embrace change.

Colin warned that complacency within our legal profession will lead to the obsolescence of lawyers. The Big 4 Accounting Firms are eating into the mid-level transactional work traditionally done by law firms. For instance, EY has invested $2 billion in innovation.

However, through practice innovation, lawyers can also deal with clients more efficiently. He cited examples of innovation by lawyers. For example: 

  • Osler has launched a new service that streamlines estoppel certificate production. 
  • McCarthy Tetrault has launched MT Divisions.
  • Dentons hired an accountant Beth Wilson to manage the Canadian firm. This step shows the professionalization of law.
  • The Legal Innovation Zone at Ryerson University addresses legal needs not well served by lawyers.

At the meeting Attorney General Douglas Downey spoke about the government’s consultations. The government is currently considering whether the estate system should be changed. Right now all estates are dealt with the same way. Meaning the estate of a billionaire is dealt with the same way as an estate worth $20,000. The complex process leaves some smaller estates in limbo. The government is considering providing a simplified procedure for smaller estates.

Acclaimed author and lawyer Andrew Pyper spoke about the importance of narrative. He talked about his writing process. He begins writing a story by thinking of a body of ideas. He then shaves off the things that don’t work until he gets to the core idea.

Pyper recommended that our stories have a main character and that we identify the stakes. By having a main character, the reader becomes invested. The writer must answer why them and why does the reader care about it. By finding the right question, the author tells the right story.

I truly enjoyed the conference and found the topics enlightening.

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

Lessons from the CPD “Take Control of Your Career: Hard Work is Not Enough”

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Deborah Glatter, training and management consultant (former Director of Career Development at Cassels Brock & Blackwell LLP) spoke about strategically managing your own career. She pointed out that no one else will care for your career as you do. If you are not proactive, you may come to a dead end in your career. You can’t hit a target that you do not see. For example, if you want to become a partner, you need to know the criteria for entry into the partnership. Ask yourself “are you a replaceable cog in the wheel?”

One way to avoid being a replaceable cog in the wheel is to claim a subject matter expertise. You can level the playing field by choosing to learn about a new area of law, like cryptocurrency. When cryptocurrency became popular, there was no established expert. You can own the space at the firm in a new area by filling the void. You can demonstrate your expertise by writing about it to the public or by doing internal marketing within the firm.

Glatter also recommended finding a champion (someone in power who thinks that the firm is better off to have you there). She also recommended lawyers to care about the firm beyond the employee mentality. For example, you can identify a problem in the firm and improve it.

With respect to time management, Glatter said that we should be strategic with our use of time. Our brains can focus for 90 minutes and then our brains need a 20 minute break. If you are working on a complex problem, do it exclusively. Then rest for 20 minutes by not working on a complex problem. Also, do the “bad tasks” first in the day. For example, make the phone call you don’t want to do, work on the factum you don’t want to write, etc.

Glatter also recommended the “touch it once” idea. Do not repeatedly reread emails and voicemails. Answer it and move on. Multitasking doesn’t work. Work on one item at a time. Get rid of any alerts that drag attention away from the task at hand. She recommended that we watch “ADHD – Not Just For Kids” (The Nature of Things – September 23, 2017). If your office is disorganized, you are late consistently, you are disorganized, then you may have adult ADHD. It presents differently than ADHD in children.

Lawyer Daniel Naymark spoke about his path to starting his own law firm. He recommended that we work on building a large social network. His motto is to be social, be nice, and do good work.

He identified a demographic (which sorts of people will refer him work). He identified the type of work he likes. He identified the kind of people he likes being around. He noted that some lawyers get their clients from institutional clients, others from ethnocultural communities, and others from professionals referring work (e.g. lawyers, accountants).

He also recommended that people keep themselves top of mind for their referral network. He keeps a track record of when he contacted people last. He sends people a note to check in (for example, “I read your case in the O.R.s. Congratulations). He also recommended that we do not let our position in litigation infect our demeanour.

Paulette Pommells, career coach, spoke about personal branding. A brand is a set of expectations and stories that account for the consumer’s decision to pick one product over another. She advised that 82% of clients’ decisions in choosing you as their lawyer is the combination of competence and warmth.

Paulette recommended asking clients in consultations: what are your goals, what do you want from the process, and what are your fears.

Lina Duque spoke about social media for lawyers. She recommended finding a niche (who is my audience and who I want to tell them). Spell out the value you provide to them.

Lina provided a checklist for your social media profile. You should identify your professional title, your area of expertise, your firm Twitter handle, your personal interests, a disclaimer about legal advice, and you should use a hashtag if applicable. You should also add a link to your website so people can find you.

When creating your social media content, you should curate content of value. For example, share stories that are related to your sector, your firm news, your successes, your articles, use hashtags and look for information that can help other people. Don’t be afraid to engage in conversations with people on Twitter. You can bypass traditional hierarchies in the corporate world and speak directly to someone.  It can accelerate networking. The more we share, the more we invite connections. Networks are the breading grounds of opportunity.

You should also monitor your online reputation. Set up a Google alert. Before posting, ask yourself:  is it true, does it add value to my target audience, is it aligned with my personal brand, and does it comply with your employer’s social media policies. Do not post articles or opinions adverse to your clients. Do not troll people. Do not engage trolls.

Make engagement a daily habit. 5 minutes per day is better than 30 minutes one day a week. Twitter is busiest Monday to Thursday from 1pm to 3pm. LinkedIn is busiest from 7am to 9am and 5pm to 7pm during the week.

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

Finding a Better Way: Automating Divorces

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In Dunford v Birnboim, 2017 MBCA 100, the Manitoba Court of Appeal criticized the family law court system, stating that this case highlighted everything that is wrong with our system:

  • Pits family members against family members,
  • Expensive legal bills,
  • Long lawsuits, and
  • Lawyers focussing on their clients’ needs over what’s best for the family.

The Manitoba Court of Appeal proclaimed: “There has to be a better way.”

A better way may soon be coming in the United Kingdom. The United Kingdom is planning to have people apply for a divorce online, replacing paperwork. These online applications are predicted to shake-up the system. Allowing people to avoid ugly divorces at a click of a button.

Online divorces make sense. It allows the government to save millions of dollars. And it allows people to avoid long lawsuits and expensive lawyers. If an algorithm can do a better job, then why not?

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

Articling Crisis? Views from Across the Country

IMG_10466 – CBA Young Lawyers Exec #CBAyounglawyers

At the end of October, the Canadian Bar Association Young Lawyers held an Executive Meeting in Toronto. Members came from across the country: Newfoundland, B.C., Alberta, P.E.I., Quebec, Saskatchewan, New Brunswick, Nova Scotia, Manitoba, and the Territories. There was also a representative from the American Bar Association.

At the meeting, we discussed internal governance matters and policy. This included an in-depth discussion about the current articling crisis, and how we could help. Although I am not going to discuss CBA policy or its position on articling, I am going to highlight our discussion about articling. This information is anecdotal and represents observations from across the country.

British Columbia and Ontario are experiencing the greatest articling crisis compared to the rest of the country. In British Columbia, rumors are growing about students taking on unpaid articles. These positions are not advertised, but are spread through word of mouth (making it harder to determine its prevalence). Whereas in Ontario, people are seeing unpaid or low paid positions openly advertised. It was theorized that the LPP program in Ontario has normalized unpaid or low paid articling jobs.

In P.E.I and Newfoundland the bars are smaller. Students are finding high quality, paid articling positions. The smaller bar keeps articling principals accountable for their behaviour and acts as a sort of quality control.  Some law firms even cooperate, and set up a sort of rotation process. This allows students to get experience in different fields.

In Saskatchewan, it was unheard of for a student to not find an articling position. However, they are just starting to see students struggle with finding articling jobs. Similarly, Alberta is starting to see this too. Especially, as students from other provinces migrate to Alberta to find work.

Manitoba tends to be a few years behind Ontario. It is currently rare for students to not find articling positions. However, it is predicted that the articling crisis will come to Manitoba.

In the territories, students are finding articling positions. However, the people that tend to article there have deep roots with family and friends, making the transition easier.

A common issue for every province is the rural-urban divide. Big cities are seeing an over supply of young lawyers. Whereas many rural communities are desperate for young lawyers. There may not be a lawyer nearby for hundreds of kilometres.  And the lawyers that are in small communities are near retirement age. In British Columbia, the average age for a lawyer outside the Lower Mainland is around 55 years old.

Law schools that were built in northern communities have not ameliorated this problem. Many students are moving to urban centres after graduation.

The United States is experiencing the same issue with rural communities. Some towns have gone to great lengths to address this, including paying stipends to attract general practitioners. These general practitioners do not advise the town but rather advise individuals living in the town.

The American Bar Association representative also spoke of a program that could be adopted here. Under Barack Obama, there was a student loan forgiveness program. This program was used to encourage young lawyers to work in public service. If a lawyer worked for 10 years in public service, then their loans could be forgiven. It was theorized that the Canadian provinces and territories could adopt a similar program to motivate students to practice in rural communities.

The British Columbia Branch of the CBA has already made submissions to the British Columbia Government on creating a student loan forgiveness program for young lawyers willing to practice in rural areas.

It was also discussed how we could ensure high quality training, especially with a rapidly changing legal economy. Smaller bars have an easier time with quality control. People tend to be held accountable by each other. However, larger bars have a hard time ensuring that someone is being trained rather than exploited for administrative work or being ignored all together.

Entity regulation was seen as one way to address the issue. Scrapping articling and moving to an American style was also discussed. It was questioned whether articling could continue to serve its original purpose, when traditional legal work is decreasing. And we are starting to see completely new types of legal work emerge.

At this time, the CBA Young Lawyers has not taken a position on the articling process. However, it may in the future.

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

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On an unrelated note, it was also noted that R v Jordan has caused delays for civil matters. It is now common in multiple provinces for civil trials to be booked for two years from now.

 

 

 

Ontario Bar Association: Young Lawyers’ Division Social

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Come join us on September 13 to celebrate the beginning of the new season.

Date: Wednesday, September 13, 2017
Time: 6:30 pm – 9:00 pm
Location: The Merchant
181 University Avenue | Toronto, ON | M5H 3M7

 

CBA Member: No Charge | CBA Student Member: No Charge | Non-Member: $15* plus taxes

 

 

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