Darryl Legal In the News

Despite how common it now is to see orders for the production of material from social media sites — with the content to be used as evidence — plaintiffs continue to let their guards down online, putting their credibility in danger, says Toronto personal injury lawyerDarryl Singer.

One recent case, Tambosso v. Holmes, 2015 BCSC 359 (CanLII), saw a woman’s claim for hundreds of thousands of dollars in damages largely rejected by a judge who found the contents of the woman’s Facebook page to be “completely inconsistent” with her testimony.

The woman was suing for damages as a result of two car accidents — one in 2008, the other in 2010. The case details claims of several injuries allegedly suffered by the woman, including psychological ailments such as “post-traumatic stress disorder, depression and mild traumatic brain injury,” reads the decision.

Evidence put forward by the defence included more than 100 pages from the woman’s Facebook account, showing her in numerous social settings with friends.

“I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a ‘homebody’ whose ‘life sucked’ and ‘only had friends on the internet,’” Justice Robert W. Jenkins writes inTambosso.

Singer, who was not involved in the case but commented on the topic generally, says there was a time when an individual’s online persona didn’t play a role in the courtroom — but that time is over.

“It’s standard practice now when clients go to discovery for them to be asked whether they have a Facebook account, a LinkedIn account, an Instagram account, a Twitter account. It’s standard for them to be asked not to delete anything from that day forward, and they may or may not be asked to produce copies of certain photos,” says Singer.

That said, blanket access to a Facebook page is not the norm, as discovery is not meant to be a “fishing expedition,” adds Singer.

“What I tell my clients from the day they come into the office and retain me is you need to be very, very careful about what you post on social media if it’s inconsistent with what you’re going to say under oath,” he says. “If a client says they used to go out dancing every week but can’t do so since their accident, but Facebook photos show they’ve been out every second weekend at clubs with friends, that’s going to harm their credibility and destroy the case.”

In fact, Singer says it’s best if plaintiffs refrain from posting altogether.

“It used to be that insurance companies would hire private investigators to determine that things you say you can’t do you’re actually doing — and they still do that — but now sometimes all they have to do is look at social media accounts,” he says.

Privacy settings do not always mean a post will remain private, adds Singer, who says there is “always a way” the page can be accessed.

The digital age has not necessarily changed Singer’s tactics in handling such cases, but social media “adds an extra layer” of information to warn clients about.

“We tell them they may be followed by a private investigator, and now we tell them about the risks of social media. I don’t think it’s any different — it’s just a digitized version of the analogue form, which was a private investigator following you in a car,” he says. “People can be incredibly careless. They think they’re only posting it for friends. I’m constantly amazed at how many people let their guards down.”

As debate continues around the benefits of Ryerson University’s Law Practice Program, Toronto personal injury lawyer Darryl Singer — who worked as a mentor and assessor for the recently completed inaugural session — tells Law Times the quality legal skills gained by participants cannot be overlooked in discussions around the program’s merit.

The program, introduced by the Law Society of Upper Canada in the fall, was designed to address the growing shortage of articling positions in Ontario and offers law students a quicker path to qualification through four months of skills training and a four-month articling requirement.

Referencing his first-hand experience with the program, Singer says it has been a resounding success.

“As a lawyer old enough to remember my articling period preceding a mandatory four-month bar admission course covering eight distinct subjects and who articled at a time when true mentoring still existed, I am not alone in witnessing a decline in the educational, practical, and professional standards of many newly called lawyers,” he writes in Law Times. “This is not to suggest the sky is falling, but that the Law Society of Upper Canada used to have more stringent quality control over new calls.”

The current situation, he writes, is a “failing on the part of the law society in disbanding the old bar admission course,” and also a “failing of a legal industry driven by billable hours and greater economic pressures than ever before with the result that it is more likely to view an articling student as a profit centre rather than as a mentor’s contribution to the future of our profession.”

Singer says the student participants worked through a series of real-life experiences like client intake interviews and negotiation; argued in actual courtrooms; and dealt with share-purchase agreements, among other things.

“The students carried numerous files in different areas of law simultaneously. Built into the program were very real time constraints and law firm demands,” writes Singer. “With all of the students in the same program, it was easy to assess them comparatively, unlike with articling. It was a rewarding experience to see students in September who were shy and unsure with varied legal and life educational backgrounds develop by December into cohesive teams with similar experiences and feeling confident and certain.”

As for those concerned about graduates having to pay back student loans and the lack of paid student-at-law positions, the reality is what it is, writes Singer.

“Further, high student debt load combined with a dearth of well-paying jobs is certainly not unique to law students,” he says. “The Law Practice Program’s existence does nothing to exacerbate the situation.”

Singer says the program is so valuable that one could even advocate it should become mandatory in the manner of the old bar admission course.

“We could then reduce articling to the four-month work placement currently tacked onto the end of the Law Practice Program,” he writes. “If we want to maintain self-governance and public confidence in our profession, we need to ensure more than just a passing standard of uniform skills training. In that regard, the Law Practice Program is a positive step in that direction.”

 

A recent Superior Court ruling highlights the usefulness of the Apology Act as an advocacy opportunity for the defendant’s counsel, Toronto personal injury lawyer Darryl Singerwrites in Law Times.

The aim of this fairly recent piece of Ontario legislation, writes Singer, “was to allow a potential defendant to express remorse or regret without fear of such comments precluding a defence on the merits and with no impact on a determination of liability. The legislature thought it might encourage emotional bridge building between aggrieved parties that could have the positive effect of either preventing or circumscribing litigation.”

In the recent case of Simaei v. Hannaford, the plaintiff wished to use an apology from her former employer “as a quiver in the arrow of her case,” says Singer. However, the defendant’s lawyers argued the court should strike that part of the statement of claim as being prejudicial to her, as well as vexatious and an abuse of process.

Master Donald Short agreed, citing the provisions of the Apology Act that mandate that a party cannot use an apology made in good faith against the other side in the context of the litigation, and also suggested the court strike the portion of the pleading referring to the apology.

“In light of the wording of the Apology Act, pleading the apology goes nowhere because the provisions state that a party cannot use the apology in the litigation as an admission of liability. Further, the trier of fact cannot consider it in any determination of fault,” writes Singer.

The lesson for lawyers to draw from this decision, says Singer, is the discussion by Master Short of this relatively unknown statute.

“Specifically, the act essentially allows a client in any potential civil case where a putative plaintiff feels aggrieved or possesses a level of moral superiority to strategically issue an apology in an attempt to diffuse the situation. The master, in obiter, underscored the virtue of a strategic apology when he noted: ‘My personal involvement in mediation, arbitration has provided me with examples of the value of an apology in reaching a mutually acceptable out-of-court resolution.’”
Singer, who concurs with Short, says that in his experience over more than two decades of litigation, “a properly timed and genuine expression of remorse can avert a lawsuit or mitigate the eventual cost to the defendant of settling the lawsuit.

“Plaintiffs often just want someone to hear and understand them. As counsel for a potential defendant or for you if you are dealing with an unsatisfied client, Short reminds us that the Apology Act gives us a very useful tool. Used effectively and, most importantly, with authenticity and compassion, an apology may save thousands of dollars,” writes Singer.

Plaintiffs in personal injury actions arising from motor vehicle accidents face an uphill battle in court, as there are five main ways in which the case is stacked against them from the get-go, Toronto personal injury lawyer Darryl Singer writes in Lawyers Weekly.

The first challenge, writes Singer, is the ‘statutory threshold,’ as merely being injured in an accident caused by someone else does not automatically entitle a person to sue for pain and suffering.

“The injuries must meet what is called the ‘threshold.’ The plaintiff must have suffered a ‘permanent serious impairment of an important physical, mental or psychological function.’ Most of my personal injury cases involve an argument over whether or not my client meets the threshold.”

Plaintiffs then face the threshold motion, writes Singer, as s. 267.5(15) of the Insurance Act allows the trial judge to determine the threshold question regardless of the jury’s determination and award.

“This gives the insurer two kicks of the can at the same trial. If I am able to persuade the jury that my client’s injuries entitle her to a significant award of general damages, which would appear to determine the threshold question, the judge can decide the question differently and strike the jury award.”

Third, a statutory deductible on general damages for pain and suffering, he writes, is also set out in s. 267.2 (1) of the Insurance Act.

Due to recent amendments to the Act, for all accidents which occur on or after August 1, the deductible is now $36,540 on all awards under $122,000, says Singer, with jury awards reduced by this amount.

“When a typical soft-tissue case is worth less than $50,000, it is easy to see how the deductible has such an impact. Moreover, the jury is not told about the deductible, which can cause juries to return what they feel is a generous verdict only to result in the plaintiff being shut out.”

Also, he adds, while the named defendant is the person whose vehicle is responsible for causing the accident, it is their insurance company who pays the lawyer and any damages award.

“The jury is not told that an insurer is the de facto defendant. Thus, jurors may seek to balance their desire to help my client with their empathy for the named defendant.”

Finally, the unsuccessful party in the trial is also responsible for paying a significant portion of the winning party’s legal costs, writes Singer — with costs awards commonly exceeding $100,000 for a typical personal injury jury trial.

“These five factors demonstrate how the system is stacked against innocent injured victims of motor vehicle accidents. One large insurer has been so successful in exploiting these inequities that many plaintiff lawyers now routinely refuse to take on clients where that particular insurer indemnifies the at-fault driver.

“The impact on access to civil justice is that a great many deserving plaintiffs cannot find representation, and many more who do are denied fair compensation for their injuries.”

In the Feb. 2 issue of Law Times in response to critics of Ryerson University’s Law Practice Program, editor Glenn Kauth suggested giving it more time before rushing to judgment.

He referred to concerns about unpaid internships; the potential to reduce paid articling positions; the high proportion of racialized students more likely to turn to the Law Practice Program; and the issue of student loans. However, both Kauth’s editorial and public pronouncements by those for and against the program fail to mention the most significant element: the quality legal skills training gained by the participants.

Having had the distinct pleasure of being both a firm mentor and an assessor for the recently completed inaugural session of the Law Practice Program, I had a first-hand opportunity to assess it. When one considers that this was a pilot project run independently through Ryerson in the most capable hands of Chris Bentley and Gina Alexandris, anyone involved with the program can conclude nothing other than its success.

As a lawyer old enough to remember my articling period preceding a mandatory four-month bar admission course covering eight distinct subjects and who articled at a time when true mentoring still existed, I am not alone in witnessing a decline in the educational, practical, and professional standards of many newly called lawyers. This is not to suggest the sky is falling but that the Law Society of Upper Canada used to have more stringent quality control over new calls.

This current situation is a failing on the part of the law society in disbanding the old bar admission course. It is also the failing of a legal industry driven by billable hours and greater economic pressures than ever before with the result that it is more likely to view an articling student as a profit centre rather than as a mentor’s contribution to the future of our profession.

To those unfamiliar with the Law Practice Program, it grouped students into virtual firms with each assigned a senior lawyer to act as a mentor who played the role of senior partner. The students worked through a series of real-life experiences ranging from client intake interviews, setting up files, corresponding with opposing counsel, client management, negotiation, preparation of pleadings, and drafting motions. The practical skills training in litigation culminated with cases argued in an actual courtroom at 361 University Ave. The litigation files covered several distinct practice areas. They included family and criminal law, the two areas in our current system that are arguably most in need of fresh, prepared, and competent counsel in order to ensure access to justice.

In addition, there was a solicitor component that dealt with share-purchase agreements and real estate closings along with the attendant file work. This component concluded with the students completing a closing.

The students carried numerous files in different areas of law simultaneously. Built into the program were very real time constraints and law firm demands. With all of the students in the same program, it was easy to assess them comparatively, unlike with articling. It was a rewarding experience to see students in September who were shy and unsure with varied legal and life educational backgrounds develop by December into cohesive teams with similar experiences and feeling confident and certain.

As for those concerned about graduates having to pay back student loans and the lack of paid student-at-law positions, the reality is what it is. Further, high student debt load combined with a dearth of well-paying jobs is certainly not unique to law students. The Law Practice Program’s existence does nothing to exacerbate the situation. In fact, it provides an opportunity for those students who do not obtain articling positions to still meet their intended year of call precisely so they can start to practise and attempt to earn a living. It gives those students a practical experience equal to or better than many well-paid articling positions. Scrapping the program is not the answer, nor is forcing employers to pay a minimum wage over and above the current provincial employment law. This would simply result in many smaller firms and sole practitioners that would otherwise happily participate declining to do so simply because they cannot bear the financial burden.

Moreover, graduation from law school does not and should not entitle one to a particular level of income or even a job. The important aspect is that those who graduate law school should have an equal opportunity to access practical skills training culminating in a call to the bar within a year of their law school graduation. The introduction of the Law Practice Program only enhances this laudable goal.

One could go a step further and advocate that the Law Practice Program should become mandatory in the manner of the old bar admission course. We could then reduce articling to the four-month work placement currently tacked onto the end of the Law Practice Program. If we want to maintain self-governance and public confidence in our profession, we need to ensure more than just a passing standard of uniform skills training. In that regard, the Law Practice Program is a positive step in that direction.

 

As published in Law Times News

HLA Journal October 2012(1)

Litigator and Paralegal SCOPE contributor Darryl Singer examines the defence of “officially induced error,” in light of a recent case involving an e-bike operator whose driver’s licence had been suspended.

The accused in the recent Ontario Superior Court of Justice case of R. v Clifford, 2014 ONSC 2388 (CanLII) introduces a relatively rare defence in criminal proceedings, that of “officially induced error.”

This somewhat novel defence can be used by an accused to establish that she lacked the requisite mens rea to commit the offence because of some misunderstanding of the law.

In simple terms, this could be used to fight a parking ticket on the grounds that the signage indicated to a reasonable person that it was legal to park in a particular space when in fact it was not. The defence could also be used in a scenario, such as a bail violation for consuming alcohol. An accused may not be legally culpable if, although the court record indicates that refraining from alcohol is one of the terms of the bail, the actual document given to the accused did not have that particular prohibition checked off.

Essentially, the “officially induced error” defence operates in exceptional circumstances to defeat the maxim that “ignorance of the law is no excuse.” This idea that being unaware of the law is not in and of itself a defence to a charge of breaching that law, is well settled in Canada. In fact, it is the operative rule in most instances.

State-authorized Advice

But what if the accused’s understanding of the law has been as a result of information provided by an authorized representative of the state? The leading cases on the topic are the Supreme Court of Canada decisions in R v Jorgensen [1995] 4 SCR 55, and Lévis (City) v. Tétreaul [2006] 1 SCR 420.

Madam Justice E. Gillese provides a most helpful overview of the requisite elements of the defence in her decision dismissing the defence of officially induced error, in R. v Pea (2008) 93 OR (3d) 67 (ONCA). In order for the defence to apply to rebut the presumptive position that ignorance of the law is no excuse, there are five elements that must be met:

1. The accused must have considered the legal consequences of his actions and sought legal advice.
2. The legal advice must have been obtained from appropriate government officials who were involved in the administration of the law in question (in other words they must be state actors with apparent authority).
3. The legal advice must have been erroneous.
4. The accused must have relied upon that advice.
5. The accused’s reliance must have been objectively reasonable.
6. The accused must meet all elements of this test. While the onus is on the defence to meet establish that the exception applies, the burden is on the balance of probabilities.

In Clifford Mr. Clifford was under a five-year prohibition from operating a motor vehicle. The resourceful Mr. Clifford purchased an e-bike, which he believed was not a “motor vehicle” within the meaning of the Criminal Code. The basis for this belief — the officially induced error — was that in his several post-suspension roadside interactions with the police, he was on his e-bike and they did not charge him.

In each case, the officer was aware of the driving prohibition imposed upon Mr. Clifford, stopped him when he was on his e-bike, and ultimately let him go on his way. Clifford had actually had a discussion with one of the officers about the prudence of riding the e-bike while his licence was suspended. Clifford argued that as the police knew about his use of the e-bike and his licence suspension, they had in three separate occasions not charged him, and thus he assumed this to mean that the e-bike was not in violation of his driving prohibition.

Reasons for Defence Failure

The defence ultimately failed because of the specific facts of the case. The Court found that at no time did any of the officers explicitly or even impliedly advise Clifford he could use the e-bike. Further, he did not actually seek out the advice. In one instance, the officer actually advised him that another officer might very well have charged him for driving the e-bike while under driving suspension. In another, the officers had a discussion about it and advised Clifford that they declined to lay charges at that time because they were uncertain as to whether or not the e-bike was a “motor vehicle.”

The Court found that that at no time did the police ever advise Mr. Clifford that he could lawfully use the e-bike. Although the Court in Clifford did not go through the formal five-part test set out by the Court of Appeal, they seemed to arrive at the same conclusion with a more simple analysis of the facts. Even if Justice Koke had gone through the test, a dismissal of the appeal and upholding of the conviction was the only logical conclusion. For example:

1. it is arguable as to whether or not Mr. Clifford considered the legal consequences of his actions or simply attempted to be creative and buck the system;
2. the police were indeed state actors with authority to enforce the law in question, but on the facts of the case it appears they did not actually provide any legal advice to Mr. Clifford;
3. as they did not give any advice, there was no advice to be erroneous;
4. although Clifford said he relied on the advice, what he actually relied upon was an assumption the failure to charge him on three separate occasions was tantamount to explicit advice; and
5. his reliance, for the reasons above, was not reasonable.

The lesson to be drawn from the recent decision in Clifford is that, absent a reasonable argument on all five points of the test, the defence of officially induced error is unlikely to succeed.

by Elizabeth at Paralegal Scope Magazine

A Saskatchewan court recently ordered $3 million in punitive damages against Zurich Insurance and also awarded $1.5M in punitives against another insurer, AIG, in same case. The court expressly referred to the Witten v Pilot case in which the Supreme Court of Canada ordered the insurer to pay $1M in punitive damages for deliberately trying to avoid payment on a policy of insurance by alleging fraud against the insured when there was no evidence or reasonable basis for such an allegation.

In the current Saskatchewan case, Branco v American Home Assurance Company, 2013 SKQB 98 (CanLII), the two multinational insurance behemoths were found to have deliberately either delayed or avoided paying benefits to which the insured was entitled through a pattern of delay, deception, unreasonable prerequisites, unreasonable technical interpretations of the contracts of insurance, and a complete lack of good faith in dealing with the terms of insurance policies for disability payments to a worker injured in his welding job in a gold mine.

The court also found as a fact that the insurers had used the delay in payments, which caused deleterious financial and psychological consequences to the employee, to try to coerce him into accepting a low ball settlement offer.

The plaintiff’s personal injury Bar in Ontario needs to be more aggressive in using these precedents to advance claims for punitive damages against Accident Benefit insurers for what now appears to be a routine matter of doing business in soft tissue or WAD cases. The insurers now routinely determine based on one time independent assessments, and often even only with paper review assessments, that the insured falls within the MIG despite reasonable evidence proffered by the applicant’s treatment providers that he or she has soft tissue injuries which fall within the exceptions to the MIG, as set out in the SABs. The first FSCO decision on point, while not determining a special award against the insurer, made it clear that this sort of behaviour was highly inappropriate, prejudicial to claimants, and not in keeping with the aims of the SABs. The Commission, in Scarlett and Belair, found in favour of the applicant and awarded costs against the insurer. Sadly, that case was overturned on appeal to the FSCO Director and will now be pronounced upon by the Divisional Court sometime this year or next. It may be that it is necessary in these types of cases to routinely indicate the seeking of a special award on the Application for Arbitration or Statement of Claim for punitive damages in the based on the insurers conduct.

Unless the plaintiff’s Bar routinely begins to seek punitive damages and special awards against insurers, there will be no incentive on insurers to operate in accordance with either the intentions of the SABs or the public philosophies of their own companies. It will be cheaper for them to continue to use their clout to deny payment of benefits and then force unconscionable settlements when the claimants reach a desperation or frustration point.

Paralegals were among those directly affected by Friday’s shooting at the A. Grenville and William Davis Court in Brampton.

At about 11 a.m. Friday, March 28, a man entered the security area. An altercation took place between the man and a Peel Regional Police officer. The man was killed. Constable Mike Klarenbeek remains in hospital recovering from a gunshot wound.

Paralegals witnessed the events and the aftermath. Last year’s Paralegal of the Year, Elaine Page, offers some tips and advice for those directly affected by the courthouse incident, and for all legal services providers.

Here are some of Page’s tips. Others may have more advice, and examples of ways they have managed with violent incidents, or diffused situations that could have escalated. Things don’t always go smoothly; paralegals can help each other feel less vulnerable.

“Courts are by their very nature adversarial, and emotions may run extremely high,” Page notes. “We often see our courtroom appearances as a battleground, and view them as a detached intellectual exercise. We sometimes forget that while we are busy outmanoeuvring our opponents, our clients are experiencing a high level of anxiety, frustration and emotion. As that level escalates then so does the probability that a problem can occur.”
Information is Strength

Paralegals may be vulnerable because we lack crucial information about our client, the parties or witness who may have a mental health issue, or a history of violence.

“When you are interviewing your witnesses or clients look for clues,” Page advises. “For example, if, through the course of your communication with them, they have bragged about violent behaviour, seem overly emotional by “normal” standards, or otherwise give you an impression that, while you might be representing them, you wouldn’t want them to know where you live, chances are they could be a problem.”

If you sense a risk, don’t go it alone. “You can and should ask security to remain in the courtroom throughout your hearing, and if need be escort you out of the building when the matter is over,” Page notes. “The court will abide your request, as they have a vested interest in keeping the courtroom as safe as possible.”

Don’t Go It Alone

More practical advice: Never take an elevator with the party from the other side, or find yourself alone with them. “If you need a bathroom and see them go in, wait until they are finished before you enter,” Page says. “The same holds true if your client is exhibiting behaviour that is questionable. While at the courthouse if you are witnessing a situation in the hallways escalating, seek out security before the situation becomes unmanageable.”

Civility is paramount, Page says. “Our clients take their clues from us. If we are shouting and carrying on then we are telling them that it is ok for them to. That goes for the way in which we treat our fellow licensees, and court staff as well.”

If you are in court and see one of the parties being belligerent to the Judge, get up and get security. Don’t wait for the Judge to hit their panic button — by then it may be too late, Page says. The same holds for other venues. “At the counters, the public can get frustrated, blaming the clerks for their misfortunes. If you are being served when this happens, tell the clerk that you need a moment to go get security. Not only will they allow you to do so, but they will appreciate it.”
Stay Alert, Stay Safe

If you see briefcases or other objects that appear to be unattended for a period of time, alert security. This is particularly important in courts and tribunals where there are no metal detectors or X-ray machines.

If you see a colleague who appears to be in trouble — step in and help them out, Page says. “Over the years many of my colleagues have escorted me to my car and to them I am always grateful.”

To anyone who was at the Brampton courthouse on Friday, Page offers some hard-earned advice: “I want you all to know that it does get easier, and whatever you are experiencing is normal. People who have not lived it cannot imagine it. There is no shame in admitting your fear and your apprehension. You need to process it as best as you can, surround yourself with things that make you comfortable, stay away from alcohol and drugs, share how you are feeling with people who will listen to you, and if you need help there is absolutely no shame in getting it. It does get better, I promise.”
Helpful Resources Include:

Member Assistance Program

Offered by the Law Society to members and their families, MAP matches trained volunteers with licensees who need someone to help them through the tough times.

Know When to Step In

Litigator Darryl Singer wrote a column for SCOPE about depression in the legal profession. Learn the warning signs, and how to help a colleague who seems to be struggling with this issue.

Unwarranted Anxiety or Instinct?

The Gift of Fear, by Gavin de Becker, is a non-fiction work that is surprisingly helpful for anyone who finds it tough to feel safe in an unsafe world. It focuses on practical advice for everyday situations, encouraging us all to trust our instincts as the best way to recognize danger and predict violent behaviour. As de Becker notes: “True fear is a gift. Unwarranted fear is a curse.”

by Elizabeth Published on Paralegal Scope Magazine