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)

Suing Apple over FaceTime

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In December 2014, a young child died in a car accident. The culprit: allegedly a distracted driver. The driver was on FaceTime.

The parents of the child are suing Apple for the iPhone’s design. The parents allege that Apple was negligent for not warning users that FaceTime was dangerous “when used or misused in a reasonably foreseeable manner” and by not including technology in the cell phone to disable certain functions while driving.

Does Apple have an obligation to warn users? It is already legislated in most jurisdictions to not use your cellphone while driving. If people need to be warned by Apple about the dangers of FaceTiming and driving, perhaps those drivers shouldn’t be driving in the first place.

The more interesting argument is the technology argument. Is it careless for Apple to not institute features that disable cellphone functions while driving? What is the standard of care to be applied to Apple?

In the statement of claim, the plaintiffs state that the Apple should know or should have known that drivers would be distracted by the features on their iPhones. And that Apple breached its duty of care by failing to use reasonable care in the design and manufacture of the phone by not using the lock-out technology.

This is a novel argument. I predict that Apple will move to strike the claim before filing a defence.

But if Apple is unsuccessful, would this open the floodgates? When Apple / Google / Samsung etc. makes products, what duty of care do they have to their users? Do they have a duty of care to lock-out users while driving? Do they have an obligation to build products that ensure privacy by design? Particularly so that Apps don’t steal data? Is failing to prevent Apps from stealing your data negligent?

The Pursuit of Mastery

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With a new year comes new resolutions. 2017 is no different. But what really motivates us? Is it money, status, fame, or something deeper?
 In the book Drive: The Surprising Truth About What Motivates Us, Daniel Pink writes that deeper motivation comes from the pursuit of mastery, autonomy, and purpose. “The most successful people are not directly pursuing conventional notions of success. They’re working hard and persisting through difficulties because of their internal desires to control their lives and learn about the world and accomplish something that endures.”
Unfortunately, the path to mastery (becoming better at something that you care about) is not lined with daisies and rainbows. As explained by Daniel Pink “Mastery hurts”. It is the product of persistent practice over many years.
But mastery attracts precisely because it eludes. “Greatness and nearsightedness are incompatible. Meaningful achievement depends on lifting one’s sights and pushing toward the horizon.”

Regulating Law Firms

As we say goodbye to 2016, it’s time to embrace 2017. For 2017, law societies should place an emphasis on regulating law firms.

A law firm’s culture seeps into the very make-up of its constituent lawyers. An unethical culture breeds unethical lawyers. An ethical culture breeds ethical lawyers.

In “Regulating Law Firms in Canada“, Professor Adam Dodek states that the absence of law firm regulation undermines the legitimacy of law societies. I agree.

Under the pressure from law firms to meet deadlines, win cases, win motions, appease clients, and surrounded by a certain firm culture, lawyers may find themselves suddenly doing things they never thought possible. For example, a mid-level associate in a large firm may fail to disclose a potential conflict of interest. But by disciplining only that individual lawyer, law societies “miss part of the story of how the practice of law operates and how it should be regulated.”

Professor Dodek explains:

Law firms are front and center in the lawyer-client relationship. As Lucie Lauzière has written, “[t]he law firm is now the intermediary between client and lawyer.” This is certainly true in terms of advertising, solicitation, client intake, conflicts of interest, retainer agreements, billings and many other interactions that clients and potential clients have with the delivery of legal services via “the firm.” With larger law firms, the influence of a collective culture may be even stronger.

Law Societies should regulate law firms because of the enormous power that law firms exert over the behaviour of its constituents. Behaviour once seen as obscene, now normalized by a law firm’s culture, may become second nature to its lawyers. Through the regulation of law firms, law societies can promulgate ethical standards.

There are many ways to regulate law firms. The three most powerful ways to do so are licensing, audits, and discipline. First, law societies should license law firms. This should include a vetting process. Second, law societies should audit law firms as a whole. The audits should include looking at professional conduct practices. Third, law societies should discipline law firms for the behaviour of its lawyers. The discipline of law firms can include fines, suspension of license for the firm, revocation of license for the firm, the imposition of policies, and announcements to the profession of “bad” behaviour of the firm.

Firms need to take responsibility for their individual lawyers. Not every bad apple is a rogue apple. And its time for our law societies to go beyond the individual and take a hard look at the law firms themselves.

(This post was previously published on slaw.ca.)
In my slaw post  John Kleefeld commented that law societies are moving towards changing the regulatory process. Specifically, British Columbia has examined this issue and released a paper in October 2016 titled “Interim Report of the Law Firm Regulation Task Force”.  In the report it was recommended that law firms not be licensed:
 “Given the administrative burden and costs associated with authorization, and the fact that there is already a licensing process at the individual lawyer level, the Task Force recommends that initially, firms not be required to go through a formal process in order to obtain a license to provide legal services. At this stage of regulatory development, registration will suffice.”

Is Justice Blind?

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Justice is blind or so they say. It is supposed to pay “no heed to the social status or personal characteristics of the litigants”.

But this simply is not true.

Race, gender, religion, socio-economic background, sexuality, ethnicity, ability, education, family upbringing, all play a role in the way judges assess the cases before them. But to what extent should a judge’s personal identity and experience be brought to bear in administering justice?

In the decision R. v. Pelletier, 2016 ONCJ 628, judge Justice Nakatsuru explicitly acknowledges his own identity and the identity of the offender in assessing the case before him. In R. v. Pelletier, Ms. Pelletier was sentenced to jail for 3 years for two robberies, arson, and an assault. In addition to jail time, she was ordered to undergo supervision. While undergoing this supervision, she tested positively for cocaine. And in doing so, was in breach of a court order.

In determining her court sentence, Justice Nakatsuru wrote:

[7] You are an indigenous person… As you know, I myself was raised on the prairies. I know firsthand the discrimination suffered by indigenous peoples in that part of our country. It is something all right thinking people are ashamed of…

[20] In addition, the risk of re-offending in your case is not just connected to an untreated addiction. It is connected to the historical injustice done to indigenous people. It is connected to your own personal indigenous history. Connected to the abuse you suffered…

[25] I find that rehabilitation is an important principle in my sentence. I find that restraint in imposing jail is important. Obviously it is important for you Ms. Pelletier. But is also important to deal with the problem we have in this country of sending too many indigenous offenders to jail. The courts recognize that problem. I have to address it in my sentencing of you.

[30] After careful reflection, Ms. Pelletier, I am sending you home. I wish you all the best in your life.

[31] After taking into account time served, the sentence will be 1 day.

It is a well written decision. It acknowledges the background of Ms. Pelletier, and it acknowledges the background of the judge. But if theoretically justice is to be blind, then it begs the following questions. To what extent should a judge’s personal background play in deciding a case? To what extent should the personal background of the litigant play in deciding the case? To what extent should justice really be blind?

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.

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.

 

 

 

 

 

Sumner Redstone: A Deposition Gone Awry

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Media mogul Sumner Redstone’s, estimated to be worth about $5 billion, has been wrapped up in an ugly lawsuit. After he cut his ex-girlfriend out of his estate plan, she took him to court. She challenged his capacity to make decisions.

In the transcript, the lawyer for his ex-girlfriend probes whether he is of sound mind or under undue influence. A translator is present because of his speech impediment. He is 93 years old.

The questioning starts off rocky. The lawyer asks him if he knew who Manuela (his ex-girlfriend) was. He responds: “Manuela is a f—ing bitch.” The lawyer later asks: “what did she do to help you?” He responds again the same way. The lawyer then asks him about a photograph of them together. He responds: “who cares?”. Shortly after, the lawyer asks him why he kicked her out of his house. He responds again calling her a bitch. After it appears to be not obvious enough, the lawyer directly asks Redstone how he feels about her. Answer: “I hate her. F-ing bitch.”

At trial, Redstone was found to be of sound mind. The lawsuit was dismissed.

To read the full transcript click here: Redstone Transcript