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Speaker's Corner: In support of the Law Practice Program

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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

DARRYL'S BIG ANNOUNCEMENT

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On April 30th, over 40,000 lawyers in Ontario will elect from their ranks the 40 Benchers who will govern the legal profession for the next 4 years. As a profession made up of well over 40,000 lawyers and 10,000 paralegals and having the privilege of self-governance, the role of Bencher is one of significance and responsibility not to be taken lightly. Within the profession, we are struggling with new economic and technological paradigms at the same time more law school graduates than ever before are seeking admission to the Ontario Bar. We continue to deal daily with a court system that has yet to harness the power of technology and operates at a pace inconsistent with the needs of the profession and the public. The changing face of the profession is bringing a diversity that all but ensures the end of the old boys’ networks that were still all too common at the time I graduated law school in 1991. All of which means that in the coming years, issues such as law school education, bar admission standards, and court reform will be near the top of the Law Society’s agenda.

Publicly, lawyers remain the face of a justice system that is increasingly out of touch with, and out of reach for, most Ontarians. Access to justice issues, such as legal aid funding, duty counsel programs, pro bono initiatives, non-traditional fee arrangements, alternative business structures, and the public image of the profession in the wake of recent trust fund scandals, are certain to top the agenda in the next Bencher term.

The legal profession is finally talking about substance abuse, mental health issues, family troubles, financial struggles. Lawyers, particularly those involved in family and criminal law, see the impact of these issues through their clients every day. As a profession, we are finally realizing that we are not immune ourselves to these problems. This needs to factor into the governance of the profession.

For those reasons and many more to be discussed in the coming weeks, I am pleased to announce that I am a candidate for one of the 40 Bencher seats in the April 30th elections. All Ontario lawyers in good standing are eligible to vote for up to 20 inside Toronto candidates and up to 20 outside Toronto candidates.

In the coming weeks, the Law Society website will be publishing profiles of all the candidates. Below I have reproduced the Election Statement I submitted to the Law Society for publication on the candidate information page:

Darryl Singer’s Election Statement 
For too long now, the LSUC has been governed by a group not representative of the changing face of our profession. Past and current Benchers are well-meaning, but a Convocation lacking youth, diversity, and representation from those who toil in the trenches of the profession cannot properly understand and address the issues facing the overwhelming majority of lawyers in Ontario. Most members do not practice in the biggest firms or with any measure of career security.
After 21 years in small and mid size firms, as a solo practitioner, and now as the owner of a 6 person firm, I know what it’s like to have to pay my bills even when clients haven’t paid theirs. I know the pressure of being a one-person show going toe to toe with firms that can out-staff and out-paper me on a file, not because they are better lawyers, but because their firms are larger and their clients wealthier. Having been through divorce and slow economic cycles, I know what it’s like to deal with financial pressures while trying to keep my firm running and maintain the highest standards of our profession.
Having suffered from and triumphed over substance addiction and depression, I understand the silent pressures suffered by so many of our peers. Having been on the receiving end of a discipline hearing as a result of the aforesaid issues, I have truly been in the shoes of those who lack a voice at the Law Society.
The success I have found at this stage of my career is as a result of my ability to build bridges; to find common ground with even the most entrenched opponents; to turn competitors into referral sources. I will bring these experiences and values with me to Convocation so that I will be able to build coalitions to ensure a Law Society responsive to the changing needs of our profession.
Many lawyers have commented that the Law Society doesn’t have its members’ backs. Elect me on April 30th and let me have yours.

Hashtag Bravery

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Try as I might, I just cannot shake the anger and frustration that stirs in me each time I see hypocrisy writ large. And this week I have seen it. It hit a crescendo yesterday (Janaury 11, 2015) when I saw the scenes of the estimated 3 million people, including world leaders, uniting in a rally of love and peace in Paris. Across the world, in other major cities including here in Toronto, similar rallies were led in solidarity. All this in support of the massacred at the Paris headquarters of satirical magazine Charlie Hebdo. Add to this the fact that every day for the last week my Facebook newsfeed has been cluttered with pictures of individuals holding “I am Charlie Hebdo” signs. And let’s not forget the ubiquitous hashtag bravery (if I may borrow a phrase from Rex Murphy’s January 10, 2015 National Post column) of “#we are Charlie Hebdo” currently infecting the Twittersphere.

Time and again in recent years, from Benghazi to Joseph Kony to Boko Harum, to Syria, Israel, Gaza, and now on to Paris, those of us in free and democratic Western societies wake up to the terror and the atrocities in the world after a catastrophic event just long enough to copy, paste, post, repost, tweet and Instagram our “support” for the cause in question and/or the victims of the injustice. Then a celebrity dies, or is accused of some historic crime, and our focus immediately shifts- either to an outpouring of faux emotion for a stranger whose death moves us to crocodile tears more than one in our own extended family, or to mock outrage as we look down our collective noses at the alleged moral failings of the celebrity in question. A few days later, we all go back to sleep while the real problems in the world continue unabated.

There are evil people in the world. People whose religious zealotry incites them to kill all those who do not believe as they do. We all know that in every religion there are extremists. We also know instinctively that wherever an extremist act is carried out in the name of a particular god that the majority of believers in that god have no part of it. Pundits and their supporters on both the Left and the Right get it wrong. When talking of the recent spate of attacks clearly perpetrated by extremist Muslims, the Left bends over backwards to ensure we don’t offend the innocent Muslims, forgetting that if they are rational moderates then they won’t be offended. The Right, on the other hand, expects every act of Islamic violence to be condemned by the moderate Muslims. Why? Again, the innocents and moderates have nothing to apologize for. All of humanity should be condemning acts of violence that do not accord with our principles of freedom and democracy, regardless of our religious beliefs or those of the perpetrators.

There is hunger in the world. There is deadly disease in the world. There is crime in our own neighbourhoods. There is poverty. There is racism, sexism, and homophobia, despite all the advances we have made in terms of human rights. Sadly, hashtags and tweets and Facebook posts won’t solve a damn thing.

Let’s talk about the the fact that France created a culture where radicalism was allowed to thrive. Let’s talk about the fact that in Canada we too are allowing, as a result of our mainstream media, our universities, and our government policies, a culture where everyone hides behind political correctness on the left, or “conservatism” and “traditional values” on the right (again, Rex Murphy puts this much more eloquently than I in his aforementioned column).

Our democratically elected governments respond either by refusing to act for fear of being seen to be jumping to conclusions, or by passing laws which restrict the liberty of everyone in the name of security (but which provide only the illusion thereof). In this the governments of the Western world and the punditry of the North American media have much in common. A narrow world-view of either left or right, black or white.

Governments should not be cowed to inaction out of political fear, nor should they over-react out of physical fear. We must elect leaders who will not bend to either fear of terror or fear of censure. We must also demand of our media an equally nuanced approach that by now seems anachronistic and downright quaint- a news media that deals in facts, not in speculation; in delivering news, not spectacle.

But we must ask the most of ourselves as individuals. We must stop pretending to care and show our moral fibre and “bravery” (is there a more overused word in the English language?) by our social media presence. We must stop pretending that we really care when our average focus on these issues, many centuries old, is measured in mere news cycles, after several of which a new celebrity sex tape will exorcise all the caring and tragedy from the headlines.

Let’s stop using our social media selves to show our solidarity with the cause du jour. If we really want to be brave, if we really want to care, let’s start using this incredible new technology at our fingertips and in our pockets to have an intelligent dialogue, without invective, rhetoric, and personal affront, to better understand what is really going on the world. Let us use it to educate ourselves and to try and find a way that those of us who really care might, individually or collectively, might make a difference.

On Addiction

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I have been meaning to write a blog for some time now on the troubles facing the Mayor of Toronto, for reasons that have nothing to do with politics. For starters, I was appalled by all the TMZ-like coverage of Rob Ford’s every move and all the second guessing as to whether he is really in rehab and if so, where? I am equally disgusted by the Mayor’s tweet from rehab about how “amazing” it was and his interview with a US radio show where he suggested that rehab “reminded (him) of football camp”. And don’t even get me started on his inner circle, who seem more desirous of enabling him for their own political gain than genuinely trying to help him kill the demon before it kills him. Yet I wasn’t motivated to write this article just for the sake of calling out the Mayor, his family, and the press. There was more to my thinking, and today I am motivated to write because I have been touched by the deaths of two individuals in the last week whose addictions were the certain cause of their deaths. First, the husband of an old friend. He, I did not know at all. But very sad to me nonetheless since I have known the wife very well for many years, and am heartbroken by her anguish yet helpless to make her pain subside. Then two days ago I awake to a text that C, one of my dearest friends for the last 15 years essentially drank himself to death. The saddest thing about this latter death is that I saw it coming even as I, along with C’s other loved ones, made enormous attempts in the last few months to help my friend get his life in order.

The hallmark of addiction is that one continues to feed the beast even in the face of one’s life falling apart. Despite the consequences, the addict continues to lie to his family, his friends, his workplace colleagues, and most significantly, to himself. In this regard all addicts, male and female, young and old, are alike. It doesn’t matter if the addiction is to drugs, alcohol, gambling, sex, food or anything else. Often, but not always, one of these addictions has a symbiotic relationship with one or more of the others. While depression may not be the root cause of addiction (there is much research which suggests that that there is a genetic predisposition to addiction, particularly as regards drugs and/or alcohol), almost all addicts by the time they are in the throes of their addiction suffer from severe depression. At some point the substance of choice becomes a way to manage the depression, the emptiness, the loneliness. The worst thing for an addict is being idle. The lack of structure and time on an addict’s hands mean only one thing- the addict will use. If there is anything worse than idleness for an addict it is when those around him enable him in the face of uncontroverted proof of his addiction. I use the pronoun “he” because the addicts referred to in this article are male, but make no mistake that women are just as likely to be addicts.

I know of what I speak about these matters, having been an addict myself. What began as a way to treat the pain of my severe migraines in 2003 ultimately became, by 2007, a full-fledged addiction to prescription narcotics. I lied when my ex-wife called me on it. I lied to my doctors (yes, doctors- I had many of them- all the better to get more pills). I was confronted with a mini-intervention of sorts by two friends and colleagues who sensed something was amiss. I lied my way out of it and immediately went to yet another doctor to obtain yet another prescription for more Oxycontin which could be crushed, chewed or snorted for the next high. Mostly I lied to myself, thought I was managing, thought nobody knew. Even convinced myself I wasn’t an addict. Even throughout a 2 year period when I was probably never not buzzed. Even as my life fell apart- even as my marriage ended; even as I couldn’t care for my children; even as I became inattentive to my clients and started getting complaints to the Law Society; even as my bank account became increasingly empty with less and less new client retainers to replenish it; even as my health was failing and my naturally thin self lost a terrifying 35 pounds; even as I slept 12 to 18 hours a day but suffered a constant malaise; even as I lost joy in absolutely everything I formerly loved so much. And yet I was lucky, although at the time I didn’t realize it, because I was surrounded by people who loved me, who knew I was struggling, and who only wanted to help. And they tried. My friends, my family, my professional colleagues. Not their fault at the time that they had no effect, It wasn’t until one day when I had an epiphany. At that moment, in early 2009, I accepted my disease and committed to getting help. At that moment, I realized I had fallen into a pit of despair and hit rock bottom and thus began the slow ascent back, a task that at times felt Sisyphean. This required me to give away what clients I had left and take a leave of absence from the practice of law. To dramatically adjust the standard of living to which I had become accustomed over the previous 15 years, To give up the 50/50 shared parenting time I had with my kids. To put myself in the hands of my family physician, my Ontario Lawyer Assistance Plan (OLAP) social worker and peer counselors, my therapist. To do what they said, when they said it, and how they said to do it. Not such an easy task for someone used to being his own boss for more than 15 years. I pushed myself physically, mentally, emotionally. I did the 12 Steps. And the pain of getting clean was like nothing I have ever experienced before or since. In the early days I thought I would never be free.

I know of what I speak because I also volunteer as a peer counselor and board member with OLAP. I have counseled numerous lawyers and paralegals suffering the same fate and been able to reassure them they weren’t alone, help them find the right place to turn for professional assistance, and advise them on how to deal with the inevitable practice-related issues that are often present in such cases.

I know of what I speak because I devote a certain percentage of my annual billable time to pro bono cases. As such, I regularly represent lawyers at Law Society discipline hearings, as well as indigent clients in the criminal courts. In my experience, the vast majority of lawyers in front of the Law Society Tribunal are not, as the Toronto Star would like you to believe, vile, immoral crooks. Most are decent men and women who suffer from addiction or depression and often both. And contrary to public perception, most accused in criminal court are not bad people. There too the system is burdened with a disproportional number of defendants who would not be there but for their substance abuse issues.

My friend C and the Mayor were the same. Ford’s current stint in rehab smacks more of political opportunism than a genuine attempt to heal himself. While the Mayor may come back from rehab somewhat better, I predict it will not last. His behavior, and that of his family since he went in, does not indicate a serious attempt at rehab. I hope I am wrong but as I noted thrice above, I know of what I speak on this subject. The Mayor’s family and political aides do him no favour by either explicitly or at a minimum implicitly condoning his actions and his refusal to get serious help. By contrast, my friend C’s family and friends rallied around to try and push him to get the help he needed. However, like the Mayor, my friend didn’t want help (or believe he needed it). C put on a charade of wanting and needing our help, of seeking treatment, only to run back to the bottle when we went home. Or he out and out lied to us and told us he wasn’t drinking and we needn’t worry any longer. Of course, the one really being lied to by C was C himself. Some he knew may believed him. Yet, even on the phone listening to him earnestly trying to convince me he had been sober for 5 days, that he was going through serious withdrawal, that he was intent on getting through it and on staying sober, I knew he was lying on all counts. Yet until the addict stops lying to himself, no amount of outside help will benefit him. But to ignore the addict’s lies or to turn away rather than to keep trying to help is akin to buying them the drinks or holding the needle.When my son asked me a few weeks ago how C was doing, I said I feared he was going to drink himself to death (not deliberately, but the end result is sadly the same). I was expressing a fear, not actually intending that my words would be prophetic. Unfortunately, I know of what I speak in these matters.

Which brings me full circle to what originally upset me about the tabloid style coverage of Rob Ford’s obviously alcohol and drug fueled antics these last number of months, and the “Where’s Waldo” game that the media began to play as soon as word spread that Ford was in rehab in an undisclosed facility. It may be entertaining to the masses, and sporting for the journalists, to treat Ford as just another celebrity punch line. Sadly, the major media outlets once again put entertainment and spectacle above real journalism and the chance to educate readers, possibly recapturing even a modicum of the public trust that they lost as they trailed behind another movie star’s limousine. For addiction is not like some reality show you can watch for fun with your mates to satisfy your basest lowbrow desires at the feast of others’ misfortunes. Addiction is a disease, one which kills just as surely as cancer. Everyone knows at least one addict in their life. You may not know you know an addict but you do. Too often we look the other way. And to be fair, you can’t police everyone you know. And the addict must ultimately take responsibility for his own situation. Oh sure, many addicts blame their cycle of devolution on some sort of triggering event like divorce, job loss, financial stress, and the like. But the addict is the only one who can change his behavior. As a society we need to talk about these issues when they are staring us in the face as opposed to using them for political gain (as the Mayor’s foes have done) or treating the events like the circus has come to town (as did every major media outlet in Toronto and many around the world). The Rob Ford saga was a perfect opportunity for those who had a political or editorial bully pulpit to engage the citizenry in a serious dialogue about a serious issue which affects us all. The addict has family, friends and work relationships. All of those individuals are emotionally affected by the addict, and since they don’t live in a vacuum so are those around them. One addict can negatively impact dozens of lives. All of this leads to decreased productivity, higher divorce rates, more kids without involved parents…are you starting to see a pattern developing? It takes an addict, and only one, to destroy the village.

My story of addiction has a very happy ending. I have been clean of narcotics since January of 2010. The depression I suffered for years also magically disappeared mere months after the drugs were permanently out of my system. Four and half years later, I am now in touch with deeper feelings than I have ever known. I am happier and more content with life than I ever imagined. I am more engaged with my children, have a keener appreciation for the little daily things that make life great. I am a more focused and better lawyer than I have ever been. I try new activities and push the boundaries of my comfort zone. The anger and insecurities I carried for years into my addiction are no more. I am confident and secure. When people ask me how I am doing I almost always answer “never better!” and I mean it. I may look like a short, thin, bald, middle aged Jew, but I FEEL like Adam Levine!

The book on C’s addiction had a much sadder ending, the saddest ending of all. He leaves behind many people who loved him including his six year old son.

So, Mayor Rob Ford, you are the narrator of your own biography of addiction. As things stand, it appears you may only have a couple of chapters left to write. When I read the last page of your book, will it be you, standing proudly with your family, having overcome your addiction and discovered a genuine joie de vivre unmediated by drugs and alcohol? Or will the last chapter of your book be a eulogy read by your children? The choice is yours Mr. Mayor. I think you are likely a very good man who loves his family and entered politics for the noblest of reasons. The Rob Ford we have seen is distorted by his addictions. Will we see, and you rediscover, the REAL Rob Ford? Only you can decide. I mean really decide once and for all to make a clean break and get well, not like this present attempt, which is layered with a startlingly disingenuous veneer. Should you choose the right path, and there is only one right path lest you end up like my friend C, I only hope your “supporters” have the good sense to keep quiet and the media the decency to leave you alone to recover in peace and quiet. Remember, I know of what I speak in these matters.

And The Secret Is…

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Ever since Facebook started cluttering our daily news feeds with paid placements, there has been one product genre that seems to muscle out all the other ads. I am speaking about ads promoting products, seminars and business selling what I shall call “success without effort”. I speak,for example, of invasive ad placements for trifle such as The Millionaire Mind; The Secret; seminars for how to buy real estate with no money down; various weight loss fads; and online diploma mills masquerading as legitimate colleges. This is in addition to the dozens of books and courses purporting to teach one how to find and maintain the perfect relationship or teach you how to raise your kids like a Tiger Mom. And let’s not forget updated versions of the old Amway and water filter multilevel scams with juices and vitamins instead of household products.

While the ads themselves seem almost cartoonish in their simplicity, and the actual products for sale appear benign, I cannot help but be disturbed by two particulars of note: (a) that people I might otherwise have respected for their intelligence and good judgment clicked the “Like” button, or even worse, shared the ads on their own posts. This, of course, is exactly what the advertisers are hoping for, which is to create the patina of legitimacy as a result of peer endorsements; and (b) these ads are really aimed at the most desperate amongst us. And what better way to market to people’s insecurities than through Facebook- that great new social media platform where everyone else’s life appears more exciting and successful than your own. If ever there was a place where the putative cool kids shine and the insecure are driven insane by the constant bombardment of their insufficiency, Facebook is it. Facebook- where the cliquishness, one-upsmanship, and passing of judgment continue long after high school can no longer be seen in one’s rear view mirror.

These ads are in addition to the hundreds of re-posts of articles, videos, photos and the e-version of those old success posters, which like the ads seem to suggest that the key to success is just the right mindset.

The ads and the underlying promotions are not new. It is only the method by which the message is disseminated. Tom Vu had jiggly ladies on a yacht and fancy cars in front of a mansion on late night infomercials 25 years ago. Television shopping channels would never have gotten off the ground but for the various exercise and weight loss fads. Amway, the granddaddy of the success without effort school of sales, has been around for generations now, having recently changed only its name but not its insidious sales tactics. Self-help gurus are nothing new. Norman Vincent Peale’s The Power of Positive Thinking, perhaps the template for the tens of thousands of self help books since, was first published in 1952. A generation earlier, in 1937, the “imagine untold riches and they will follow” school of thought was firmly established with the publication of Napoleon Hill’s Think and Grow Rich.

It’s hard to blame anyone for falling prey to the twin temptations of fame and fortune. The desire for financial success is ingrained in our first world capitalist mentality. Even in Canada, our greatest socialist thinkers were more often than not the scions of wealth. Speaking frankly, money does matter. It provides one with options and allows for a certain freedom. To those on the outside of the fishbowl, all that money and fame sure looks like fun. Celebrity culture has increased the pressure on women (and increasingly men) to look a certain way. All the while, those of us who are parents are all motivated by the desire for our children to grow up to be happy, independent, financially successful adults. We are equally terrified we will screw them up and as such yearn for any competitive edge that will give our kids a leg up.

Even as a young barely pubescent boy mesmerized by the charlatans on late night TV (amazed at their unmitigated chutzpah, yet grudgingly respectful of their oration skills and rhetorical flourish), it has been a mystery to me that any seemingly intelligent adult could fall for this clap trap. And just when it seemed that the dawn of the 500 channel universe and the rise of the Internet giants would quell the self-help beast as people pacified themselves with all that the e-universe had to offer, Oprah helped turn The Secret into one of the bestselling books of all time.

A quick search of Amazon.com reveals thousands of books on parenting, many of which offer conflicting advice. The same can be said for books on romantic relationships. As for self-helping your way to money and power, it seems that sadly with each new generation, the expectations go up in direct correlation to the decline of the work ethic. Factor in the immediacy of social media, the pervasive influence of reality TV, and an era in which advertisers often control the production of seemingly innocuous entertainment like puppets on a string. The result is a society where everyone wants to be rich, famous, thin, glamorous and live out what Robin Leach called their “champagne wishes and caviar dreams”. The difference today is that in the 1980s when Leach’s show aired, those lifestyles were looked upon with wonder and amazement, but always for entertainment purposes only. Today, too many people devoid of genuine talent and/or work ethic feel entitled to that lifestyle as well. Sadly, what is left is left out of the narrative of the rich and famous today are the years of toil and dedication, the sleepless nights, the financial peril in which they existed before the big time hit. Of course, with the advent of Youtube and reality TV, some people really do become overnight successes with little or no effort. But such success is fleeting. Real enduring success, be it career, relationship, parenting, business or financial, cannot be constructed in an afternoon like a 7 year old’s Lego creation.

Just today I was listening to one of my favorite podcasts, a comedy podcast that often takes listener calls. At least twice a week someone calls in and asks how to “make it” as a stand up comedian. When pressed by the host, the caller inevitably admits that he has never even so much as done an open-mic amateur hour, and often has not even developed 5 minutes of material. A brief conversation ensues that makes it abundantly clear the caller isn’t even funny. But that doesn’t stop the aspiring Seinfeld from seeking advice on a shortcut to the top of the comedy world from one who has made it.

The Secret, my friends, is that there is no Secret. There is no shortcut. There is nothing that will come merely by hope and prayer. Financial success will come with hard work and by being smart with your money. Education that will actually yield dividends will not be found on the Web; it will be found in a respected educational institution where entrance standards are high and getting through to graduation requires effort. At least in this country, one cannot buy real estate with no money down, and our foreclosure laws do not allow for below market value sales. Real estate investment is a long game replete with risking your own money and credit. And losing weight is, at end the of the day, simply what every doctor of repute will tell you- take in less calories daily while burning out more calories through exercise.

There are no magic beans, potions or secrets that will allow you to achieve your goals, be those goals personal or financial. Every one of us is able to achieve certain goals we set for ourselves. But we must be willing to work for those objectives, to persevere even in the face of the most Sisyphean challenges to our long term goals.

If there is one thing that I am trying to instill in my three children, it is the concept of grit. I want them to understand that they can achieve almost anything they set out to do, provided they are focused, driven, work not just hard but also smart, keep going when the chips are down, and never, ever, expect to achieve merely because they dream. And depending on the goal, they must actually possess some basic aptitude. I will make sure they know that they will not become rich by joining a multi-level marketing program, nor will they achieve their ideal “look” by ingesting some special formula. They will not obtain a career-making degree without going to school- real school and studying long and hard.

As for me, I will not be a better parent merely by reading a book. Parenting is the most challenging job of all. It requires time and much thought to do it correctly. I will not be a better husband for my next wife than I was for my last merely because I pick up some sound bites about communication from the Dr. Phils of the world. I must truly make an effort to listen with an open mind to the needs and wants of my partner. My future career success will not be an automatic merely because I have the momentum of past success. I must continue to dedicate the time and effort going forward that I have in the past.

So I guess what I’m taking 1400 words to say can really be summarized in 7: The Secret is there is no Secret.

'Officially Induced Error,’ Or Wishful Thinking?

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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

Punishing Insurers with Punitive Damages

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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.

The Truth About Auto Insurance

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Auto insurers in Ontario would have you believe that your high premiums are as a result of fraudulent claims and claims by individuals who are not seriously enough injured. Now they are again claiming the sky is falling over a recent Court of Appeal decision that took the Financial Services Commission of Ontario (the government tribunal for no-fault claims) to task for not moving cases along fast enough and opening the door for claims to go directly to court instead of through the tribunal’s mediation process. The Court of Appeal decision is based in large measure on the fact that the FSCO mediation process does not do what it is supposed to do in a timely fashion- namely allow injured motorists to be paid rehabilitation benefits. This systemic delay is a windfall for insurers who routinely deny treatment and simply sit on their money, money which is earmarked for benefit payout. The Insurance Bureau of Canada would have you believe that this court decision could cost insurers $300 million and that it will be yet another reason why they will be forced to increase premiums.

Auto insurance companies have a captive market. The law requires insurance for you to drive. A recent spate of mergers and acquisitions means a limited number of for-profit, stakeholder- driven, multi-national corporations from whom you can buy this insurance. The reality is that if there were no fraud and fewer claims, your premiums would not decrease. They never have and they never will. So as policy holders we have a right to demand from our insurers that they fulfill their end of the bargain, namely paying out benefits in a timely fashion.

Under the no fault regime, you have an entitlement to benefits from your own insurer if you are involved in an accident. The details are beyond the scope of this article but the primary purpose of no-fault is arguably to ensure that your rehab costs are covered. Yet insurers routinely deny payment for treatment such that many individuals are left unable to go for the treatment they need, which is usually not covered by OHIP. Your insurance company will typically say that if you have a standard soft tissue injury (whiplash, neck and back pain, headaches- and by far these make up the  majority of accident injury claims in Ontario) since your symptoms are self-described and typically not apparent on any x-ray, ultrasound or MRI,  that there is nothing seriously wrong with you. This is their justification for not paying the no-fault benefits to which you are entitled under your policy. This decision is initially made not by a doctor who meets with you, but rather by an insurance adjuster who has not met with you and has no medical training., and relies usually upon the opinion of a doctor who earns a living not from treating patients but from writing reports for insurance companies, and who will have met with you for no more than an hour. You are simply being lumped into a category.

If you are not at fault for the accident, you also have a right to sue the other driver in a third party claim (whose tab will be paid by her insurance) for pain and suffering, unlike in the no-fault regime. But the insurers here take the same position. If you have soft tissue injuries they will say that your case does not meet the level of seriousness required by law to sue (not all claims are eligible- the injuries must meet a certain level of seriousness but what is serious is the subject of most tort-related litigation). The Court of Appeal says if you can go on with all of your pre-accident activities but now must do so in pain, fatigue, with constant headaches and stress, that this rises to the level of seriousness to be compensated for pain and suffering. Yet insurers routinely deny settling claims on the basis that your injuries are self-reported and not diagnosable on any objective test. These cases at trial come down to credibility, i.e. whether you and your witnesses are believed by the court or not. But the insurance companies should not be forcing these claims to trial, often taking years and tens of thousands of dollars, when the case could have been settled at a very early stage for a reasonable amount of money far less than the cost of litigation. Of course, the law is not so black and white. Nonetheless, the general attitude of insurers results in injured parties not receiving their no-fault benefits, thus forcing them to retain a law firm to sue under the no-fault regime for these as-of-right benefits, while also forcing the third party claimants through the lengthy litigation process, again to obtain benefits for which all policy holders indirectly pay premiums.

As policy holders of these corporate behemoths who make billions a year in profits in part by refusing to honour their contractual obligations, it is time for the public to stop accepting the lies of the insurers regarding the rising cost of the premiums, and demand the benefits to which they are entitled. It is also time for those who diligently pay their premiums on time with the expectation of fairness to demand our provincial government crack down on the unfair corporate policies of the insurers. The government has given free rein to the insurers to protect the public interest and the insurers have squandered the public trust in this regard.

Darryl Singer is a civil litigator in Toronto

An Accident is Not a Lottery Winning

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So you’ve been injured in a car accident that wasn’t your fault. Fortunately, you didn’t have any broken bones, traumatic head injuries, or anything so serious. However, you likely continue to suffer from soft tissue pain, which may cause you to have headaches as well as aches and pains in various parts of your body, and you have been encouraged by friends to retain a lawyer to seek compensation for your pain and suffering. The obvious question you will ask your lawyer upon meeting is, How much is my case worth? The truth is,  it is impossible to know right at the outset until your lawyer has received and reviewed all of your medical records.

But what you should know going in to this meeting is that just because you have been injured in an accident that wasn’t your fault, you are not automatically entitled to money for pain and suffering, even if you can prove the two requisite elements of any tort claim: (i) that the other party was at fault; and (ii) that you suffered injuries as a result.

There are two methods enshrined in the law in Ontario which have the effect of limiting the ability for potential accident victims to sue and/or recover damages in Ontario.  These methods are, according the government and the insurance industry, part of an overall scheme to control automobile insurance premiums in Ontario. More accurately, these legal impositions have the effect of chilling the rights of individuals involved in motor vehicle accidents from starting tort actions. These schemes are (a) the statutory threshold; and (b) the statutory deductible. It bears noting that there is no conceivable reason for this threshold or deductible other than at the time, the insurance industry’s lobby was more powerful than the trial lawyers’ lobby.

Statutory Threshold

Pursuant to section 267.5 of the Insurance Act, a person is cannot pursue a tort action against the at fault party of a motor vehicle accident, unless they can meet a threshold test set out  in subsection 5 of that section, which provides that

…as a result of the use or operation of the automobile the injured person has… sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

 

Effectively, this means that in order to meet the threshold, you must prove the existence of a serious impairment, of an important function, that is permanent.

(i)                 A serious impairment

 A serious impairment is one that substantially interferes with your ability to continue in regular or usual employment, despite reasonable accommodations and despite the reasonable efforts to use accommodations to continue employment; or one that substantially interferes with most of the usual activities of daily living, considering your age.

 

(ii)               Of an important function

You must demonstrate the function impaired is one that is necessary to perform the activities that are essential tasks of your regular or usual employment, taking into account reasonable efforts to accommodate you and your reasonable efforts to use the accommodation; or, is one that is important to the usual activities of a daily living, considering your age.

 

(iii)             That is permanent

The important function that is seriously impaired must have been one that is continuous since the accident and must be expected not to substantially improve.  This is based on the medical evidence and subject to your reasonable participation in the treatment of the impairment, must continue meeting the criteria of a serious impairment, when compared to the improvement a similar person would expect to experience.

The Evidence

As the plaintiff in the tort action, you will necessarily have to prove this threshold through personal testimony and medical evidence. This puts credibility and reliability squarely at issue. As Justice Boswell of the Ontario Superior Court of Justice stated in a tort case called Antinozzi v Andrews , these are not the same thing:

            Credibility relates to the veracity of a witness. Reliability relates to the accuracy of the witness’s testimony and engages a consideration of the witness’s ability to accurately observe, recall and recount events in issue.

A trier of fact (judge or jury) will measure the evidence submitted, and a credible Plaintiff will help satisfy the threshold is met by a balance of probabilities.  “The real test of an interested witness’s credibility ‘must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” (Antinozzi case).

All of these factors will be considered by your lawyer both at the initial consultation, and throughout your case if one is pursued. As facts arise the lawyer’s valuation of your case may change over time.   

Statutory Deductible

A second and possibly more troubling manner in which the Ontario government has attempted to curb an accident victim’s decision to pursue an MVA tort action is the $30,000 statutory deductible.  This deductible is applicable to financial awards for general damages made by a court in all tort cases arising from motor vehicle accidents.  Essentially, this means that the first $30,000 in damages for pain and suffering ordered by the trier of fact in an MVA tort case is not paid by the insurance company of the defendant. An award by the judge or jury of damages for pain and suffering of $30,000 or less means the defendant pays nothing. An award of $50,000 means the insurer pays $20,000, and so on up to awards of $99,999. This deductible only applies to awards of less than $100,000.  The legislature’s decision not to apply this deductible to all accident awards for pain and suffering means that there is differential treatment between accident victims.  An accident victim with whiplash and resulting psychological damages resulting from a rear end collision is arbitrarily prevented from accessing the same justice that a victim with broken bones might receive, even though the damages suffered by the victim with purely soft tissue injuries might be experienced for a longer duration.  Even more upsetting is that the plaintiff’s lawyer is precluded from mentioning this deductible to a jury on top of not being able to mention that a defendant is represented by the insurance company.  Both of these keep the rightful awards from reaching a plaintiff when pursuing a tort action through to a trial. Thus, even if you believe your injuries may exceed the threshold, you must consider by how much they are likely to exceed the threshold in order to ensure the damages have a reasonable chance of being significant enough to offset the deductible.

So should I still see a lawyer?

Yes. Only your lawyer will be in a position to assess the likelihood of recovery of damages for pain and suffering. The purpose of this article is to educate a potential plaintiff on the reality of personal injury awards in Ontario, specifically that while if a lawyer does agree to take on your case you will likely end up with some money in your pocket but you must be conservative in your expectations. That said, your lawyer’s job is to build your file in a manner that your case will meet the threshold and exceed the deductible.  Generally speaking, most personal injury lawyers give a free consultation and get paid only if they are successful in recovering money for you so the lawyer has an incentive to get the possible settlement for you.

The other good news is that both the highest court in Ontario, the Court of Appeal, as well as numerous trial courts, have recently held that even if an injured plaintiff has resumed most or all of their pre-accident activities, if they must now do so in constant pain, with headaches, fatigue and the accompanying depression, what the insurance company will classify as a minor injury actually is serious enough to meet the legal test for recovery of damages.

*Darryl Singer is the principal of SINGER Litigation Counsel Professional Corporation, and has practised civil litigation since 1993