Darryl Legal Musings

Hitting the Right Notes: Raising the Bar CPD

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Like a good concert, a successful CPD leaves its audience yearning for more. Ontario Paralegal Network’s Oct. 26 session, “Raising the Bar” gave its audience a symphony of information, with plenty of room for encores.

Presented through CPD On-Time and supported by Tripemco Burlington Insurance, the event at the Centre for Health & Safety Innovation delivered a wide range of paralegal-specific information, presented by leaders in the legal community. The interplay between statute and common law weaved through each section, tying together the papers, case law and examples quoted.

Facilitated by paralegal Susan Koprich, the day-long Raising the Bar Substantially CPD started with an overview of contract law, including formation, types, exceptions, interpretation, available remedies, and enforcement. Deputy Judge J. Sebastian Winny and paralegal Hugh Ferguson detailed many of the contractual issues that paralegals encounter within the scope of practice.

In determining the enforceability of clauses in cases of breach of contract, “The court loves ‘nuanced arguments,’” Deputy Judge Winny said. “As advocates, this means we have more work to do,” in assisting courts to interpret “grey areas” in favour of the client.

Ferguson noted that paralegals should know the case law that relates to a case, so they are prepared to address any questions the court may have.

Real estate-related contractual issues came up in the contracts session, and in Former Deputy Judge Winer’s presentation on the doctrine of merger. He presented a case study on finality in contracts.

Former Deputy Judge Allan Mintz presented a lively look at mediation. Paralegals can represent clients during mediation. The option can save time, money and relationships, Mintz said. “One day of mediation is cheaper than a three-day trial” and can provide a useful peek at the strengths and weaknesses of both sides’ positions.

Paralegal and legal student, Stanley Razenberg, and lawyer, Darryl Singer, tag-teamed their presentation on the interplay between Statutory Accident Benefits and tort claims related to accidents. This highly technical field is heavy on management — not just of the case, but of limitation periods and client management. “Client management is 80 per cent of what we do,” Singer said.

Ethical issues came up during presentations, in addition to Paralegal Society of Ontario President, John Tzanis’ presentation. Duty to the client, rules around referral fees, scope of practice limitations, contingency fees and the need to communicate appropriately with clients, were among the Rules-related topics raised.

David Mayzel and Deputy Judge Harry Perlis used a “town hall” style to generate audience participation for their presentation on remedial legislation — acts such as the Construction Lien Act, Consumer Protection Act and Repair and Storage Liens Act. Paralegals can leverage sections of such “remedial legislation” in small claims actions.

As with contract-based claims, paralegals can use alternative pleadings for matters that touch on trust money and other issues covered by remedial acts. Statutes and regulations can create a maze that legal service providers must unravel, Mayzel said. To effectively represent clients, paralegals must understand the enabling statutes and their regulations, and review leading cases, and then construct pleadings that address both statute and common law.
Cases referenced in Raising the Bar include:

Action Auto Leasing v. Cantlon, 2013 ONSC 6312 (CanLII)

Consolidated-Bathurst v. Mutual Boiler, 1979 CanLII 10 (SCC), [1980] 1 SCR 888

Grover v. Hodgins, 2011 ONCA 72 (CanLII)

Hi-Tech Group Inc. v. Sears Canada Inc., 2001 CanLII 24049 (ON CA)

McGrath v. MacLean et al., 1979 CanLII 1691 (ON CA)

Whilby v. Redhead, 2010 ONSC 2420 (CanLII)

by Elizabeth Published on Paralegal Scope Magazine

What Ya Gonna do When They Come for You?

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The January 4, 2013 sentencing of 5 former Toronto drug squad cops to 45 days of house arrest with not a day in jail is something that should concern us all. These five rogue cops were convicted when “jurors accepted that the defendants conducted a search of Ho Bing Pang’s Scarborough apartment in February 1998, without a warrant, then “did wilfully attempt to obstruct, pervert or defeat the course of justice, by practising deception, including by making a false or misleading account of events in their memo books, and/or by lying to the court in their testimony” to conceal what they’d done” (Toronto Star January 5, 2013 http://www.thestar.com/news/gta/article/1310868–dimanno-measly-justice-for-dirty-cops).

Even the conviction, already under appeal, seems light when all the facts are considered. There were originally many more charges stemming from multiple incidents with this particular squad. In order to secure the conviction, the Crown dropped numerous other charges, focusing on a single episode and as such the jury didn’t even hear evidence of similar unpunished actions by these officers. This fact and the leniency of the sentence simply send the wrong message to the police, not to mention to the notions of fundamental justice and fair treatment under the law, hallmarks of our legal system. My colleagues and I all have stories of officers who frequently lie by falsifying evidence, conspire with their colleagues to ensure their notes reflect the same sequence of events, steal confiscated property (including drugs), and mete out their own brand of frontier justice in the backseat of a scout car or an interrogation room with a “faulty” camera. And then there are those who are more or less honest but just plain lazy and will happily cut corners to secure a conviction rather than put in the necessary time and effort. As any criminal lawyer in the city can tell you, this sort of behaviour is so common place that it rarely raises eyebrows amongst the defence Bar any longer except as a means to secure an acquittal or negotiate a better plea for an accused client.
 
The truest measure of a just society is by how it treats its most vulnerable citizens. Another is by the extent of police powers. Canada is a beacon of fairness in this regard and the Charter of Rights and Freedoms guarantees that all citizens, and particularly those accused of a crime, are entitled without qualification to fair treatment at the hands of the state. While such mistreatment at the hands of the police is nothing new, nor is the concept of police lying under oath, we are recently starting to see much more judicial and media awareness. Note a recent case from Brampton, home to the busiest criminal court in Canada. In R. v Dinh, (http://www.canlii.org/en/on/onsc/doc/2011/2011onsc5644/2011onsc5644.html) Justice Deena Baltman found as a fact that Peel police had used excessive force against the accused during a drug sting. The accused alleged he was beaten in a hotel by the police.The judge also found that the police had refused the defendant’s right to counsel, and exceeded the authority of their search warrant.  More recently, I was recently retained on a case where the police sought to execute a search warrant against my client’s business. The warrant explicitly stated the police could search and seize all hard copy business and banking documents, but could not seize or even search computer hard drives and cell phones. Notwithstanding the clear wording of the warrant, the police took screen captures of the cell phone and carted several computers out the door right under the nose of another lawyer present at the scene warning them not to do so.

 

These sorts of goings on are par for the course. A review of the Toronto Star archive just for the last year reveals dozens of articles about individual instances of police misconduct ranging from officers lying under oath, improperly detaining prisoners and denying them the right to counsel, exceeding the boundaries of search warrants, personal use of illicit drugs, sexual harassment of those in their command, and assaulting suspects. These are just the cases that make it to light. Hundreds more dealt with  by the police in this manner every year refuse to make complaints once their cases are tossed out of court, wanting understandably to be done with the police for good. And what of the ones that somehow get shoved under the rug, when the Crown withdraws the charges, thus ensuring there could be no adverse finding against the police? And of the many harassed in some of our poorest neighbourhoods who, having not actually been arrested, feel too powerless or afraid to speak out?
 
The five Toronto drug squad officers and their supporters would say that the fact they lost their jobs is penalty enough. They, and sadly many law abiding citizens will suggest that such shortcuts are a necessary evil to get dangerous criminals off the streets because it is so difficult to obtain a conviction and keep offenders in prison long term. We hear talk of the revolving door justice system and are constantly being told our streets are unsafe, that pedophiles, drug dealers, muggers and rapists lurk around every corner. And if the police need to break some rules in order to keep the real rule breakers off the streets we will be better off for it. That, sadly, is the thinking of too many law abiding citizens.

 

Let me digress from my screed briefly to say that the vast majority of my interactions with the RCMP, OPP,  and municipal and regional police forces in Southwestern Ontario over the my 20 years as a lawyer have resulted in professional dealings with honest, decent hardworking individuals whose job is far more difficult and dangerous than mine. I have counted many fine men and women in blue among my clients over the years (for non-police related matters) and some I am proud to call friends. They chose policing for noble reasons and go about their job by the rules, accepting the inevitable flaws in the system that make their work at times seem like a Sisyphean challenge. But there remain those with a Boss Hogg mentality and such reprehensible conduct must be punished to the full extent of the law.
 
“Why should I care”, you ask? “I’m a law abiding citizen and I want to feel safe in my own neighbourhood”, you say. “I don’t want drug dealers and rapists on the street. And if I’m not doing anything wrong the police have no reason to mistreat me”, you have convinced yourself. Well, you would be wrong in those thoughts. The Association in Defence of the Wrongfully Convicted (http://aidwyc.org/) has spent 20 years trying to free wrongfully convicted in Canada. Their clients know first hand how an innocent man or woman ends up behind bars for years.The fact is you can be in the wrong place at the wrong time; look like someone else; have a nasty breakup where your ex levels allegations of spousal abuse or child molestation (and any family lawyer can tell you this happens less rarely than you might think); or be targeted by police due to people in your social or business circles doing things about which you have no idea. We cannot draw a line and say good citizens or “lesser criminals” deserve protections under the law while those “known to police” or who commit more heinous crimes are somehow less deserving. 

 

Our Charter guarantees fair treatment under the law and the assurance that our police not only must uphold and enforce the law but abide by it. Absolute power corrupts absolutely and we should all be concerned about the lenient sentence these officers received, a sentence that they would certainly not be satisfied with were they the arresting officers on crimes with such blatant disregard for human dignity. A slap on the wrist for these officers is a slap in the face to all Canadians who willingly from childhood accept what are taught about putting our faith and trust in the police. That trust has been sadly tainted yet again by the lack of jail time in this case.

Law Society's Misguided Decision

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THE LAW SOCIETY’S MISGUIDED DECISION
by Darryl Singer

 

On September 28th 2012, the Law Society of Upper Canada (LSUC) terminated funding of the Ontario Lawyers Assistance Program (OLAP), effective December 31, 2012.  For 35 years OLAP has been an arm’s length/Chinese-walled service provider to LSUC members suffering from alcoholism, drug addiction, depression, financial stresses, marital breakdown, stress, burn-out and a myriad of other personal and professional issues that impact a lawyer’s ability to properly practise law and serve one’s clients. The LSUC is trying to replace all of OLAP’s services and programs with Homewood Human Solutions (Homewood), a commercial for profit EAP provider, – a move that should be discomforting to all members of our profession and the public. Why?

·    OLAP is a not-for-profit charitable organization staffed by a lean complement of highly trained and qualified professionals supported by a group of lawyer volunteers. OLAP’s dozens of volunteers are themselves for the most part former clients of OLAP, who, having suffered and overcome their own demons, now choose to give back to our profession by acting as peer counsellors, speakers, authors, and ambassadors for OLAP. OLAP has contracted with a commercial EAP service provider, Shepell fgi who provide therapists and counsellors to supplement the work of OLAP’s staff and volunteers. Homewood is a commercial for profit, generic EAP service provider with no experienced peer (lawyer) staff or volunteers.

With OLAP, there has been no direct relationship between the service providers (OLAP staff, Shepell or OLAP volunteers) and the LSUC. This ensures complete confidentiality between lawyer-clients and the treatment providers, with the lawyer-clients being able to focus on themselves without fear of intrusion by the professional regulator. Not only must the lawyer-clients be protected by confidentiality, there must be the unequivocal perception of such confidentiality lest members be fearful of reaching out for the help they need.

Today, except for serious misconduct or criminal activity, anything disclosed to the OLAP case worker or any OLAP volunteer by the lawyer-client is not sent to LSUC. This ensures that lawyer-clients in trouble can openly talk about their problems to obtain the best treatment regimen possible for their particular dilemmas. OLAP assists its clients to get back on track both personally and professionally. It has significant experience helping distressed lawyers transition out of practice in a way that takes into account professional obligations to LSUC and clients, thus upholding the highest standards of professionalism and the protection of the public.

While Homewood may adequately provide services of similar nature and quality to Shepell, the demolition of the wall between the LSUC and the EAP provider is very unwise. 

Homewood will not just replace Shepell with professional services, but in fact replace the OLAP infrastructure in its entirety. No longer will distressed members of the Law Society be able to seek assistance from OLAP case workers who know the unique pressures of the legal profession and the sensitivities of members in trouble. And what of the peer volunteers? The psychic and emotional benefits to a distressed lawyer being able to be counselled and mentored through the process of recovery by a fellow lawyer who has “been there” cannot be overstated. 
An informal survey conducted amongst OLAP’s volunteer base recently indicated that many of the existing volunteers are not interested in giving of their time to benefit the bottom line of Homewood. It is likely many of them will drop out and be difficult to replace, given that the volunteer relationship is directly with the EAP and no longer with a safe not-for-profit intermediary like OLAP.

The expectations of our peers, our families, our clients, and society at large serve to put additional unnecessary pressures upon lawyers that can lead to financial difficulties. The situation is even more acute for those lawyers practising outside the confines of large Bay Street firms, particularly sole practitioners, whose presence as defendants at LSUC discipline hearings is over-represented, perhaps due to their vulnerability to the pressures of the profession.

Also, no significant transitional period has been arranged to move the existing hundreds of clients from OLAP- Shepell to Homewood. What is the emotional and health related costs to those individuals? OLAP has provided services on a continuous basis for over 35 years and it is important that these services remain in place. The integrity of our profession demands it.                                                                                                      

      I know of what I speak. After fifteen years of professional and financial success, I ended up in a three year spiral of addiction and depression which cost me my health, my savings, much of my professional reputation, and scared (and scarred) my children. I shudder to think of where the bottom would have been had I kept falling down into the abyss. OLAP was the life raft that saved me when I was near drowning. From my first meeting with an OLAP case worker who made me feel safe, secure, let me know I wasn’t alone, that lots of members of our profession go through this, to the contact with volunteer lawyer peer counselors, to the excellent services provided through Shepell, I was able to see the light at the end of the tunnel for the first time in several years. An action plan was developed with the OLAP case worker which involved divesting myself of my practice and taking concerted steps daily to ensure I would recover and get back to the person and professional I had always been.

Today, I am happier and healthier than at any time in my 45 years. My children are happier as I am a more attentive parent. My professional reputation is restored; my law practice is busier and more lucrative than ever. I am a better father, son, friend, and boss than I ever was, and the next woman to marry me will get a version of me that neither of my ex-wives would believe possible. I owe it all to the initial visit with OLAP one winter day in 2009. My story is not unique.

In the last year, I personally know of two lawyers who attempted suicide, several with degenerative genetic illnesses that have hindered their ability to properly service their clients, many who have gone through divorce, a scarily large number who show the signs of depression, and many more who used to be able to pay their bills but cannot seem to find their footing in this new economic reality. There are tens of thousands of lawyers in Ontario. That means thousands in need of OLAP’s services.

LSUC’s decision to essentially abolish OLAP is myopic. It is not just lawyers in distress who will suffer, but the very public LSUC claims to protect, and the very image of the profession it governs. Perhaps the Attorney General as the guardian of the public interest should look into LSUC’s decision.