Monthly Archives: July 2008

A Tragic Story and the Legal Remedies

Posted in: "All, Family Law by Admin | No Comments Thursday, July 31, 2008

CTV.ca reported this story today that has shocked the nation. A man travelling on a Greyhound bus to Winnipeg was stabbed repeatedly in the neck and was eventually beheaded by another passenger with a knife. It appeared to be an unprovoked attack. This tragic, horrific incident is currently under police investigation. The identity of the victim and the attacker have not been officially released.

Besides my condolences to the victim’s family and sympathy for the other passengers on the bus, I’d like to talk about the possible legal consequences of unfortunate incidents of this kind.

In common law, a person’s right to compensation to civil wrongs, including injuries from unprovoked violence and motor vehicle accidents, vanishes when the person dies. The estate and family members of the deceased  cannot claim for compensation from the wrongdoer in common law.

To address this grave injustice, in modern times, laws were passed to allow family members of the deceased to claim against the wrongdoer in civil courts.

In Ontario, family members of the deceased may claim damages on behalf  of the deceased. The damages available include:

  • reasonable expenses actually incurred (medical expenses, transportation, etc)
  • funeral expenses
  • travel expenses incurred by family members for visiting the deceased during treatment
  • reasonable allowances for domestic services (e.g. nursing, housekeeping, etc) rendered by the claimant
  • loss of guidance, care and companionship

Besides suing the wrongdoers, the family members or the estate may also claim compensation under the Compensation for Victims of Crime Act, before the Criminal Injuries Compensation Board of Ontario. The following may be claimed:

  • expenses actually and reasonably incurred (such as medical expenses)
  • loss of income as a result of disability or death
  • loss of monetary support by the victim’s dependant as a result of death
  • pain and suffering

The compensation given by the Board does not affect the family member’s right to sue in civil court. However, if the family members are successful both in civil court and before the Board, the Board is entitled to reimbursement for the compensations paid to the family members from the defendant.

UPDATE:

The victim has been identified as 22-year-old Tim McLean. To learn more, click here to read the story on cbc.ca.

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The Importance of Being Earnest… and Ethical!

Posted in: "All by Admin | No Comments Wednesday, July 30, 2008

Many people have the stereotypical impression of lawyers being dishonest or ruthless about winning. Today I would like to rebut these impressions by explaining lawyers’ professional obligation to be ethical.

Lawyers in Ontario (as well as in most common law jurisdictions) are officers of the court. As such, lawyers have the professional obligation not to knowingly mislead the court. Most lawyers do take this obligation very seriously.

Lawyers are required to act honestly and courteously before the courts. This obligation goes far beyond “not lying.” Lawyers must not knowingly assist illegal acts, or permit anyone to make false statements before the court, or otherwise act dishonestly.

Of course, lawyers also have the duty to keep the communication between themselves and their clients confidential. This duty sometimes directly conflicts with the duty not to mislead the court.

What should one do when a client expresses intention to deliberately mislead the court?

The lawyer should inform the client of the lawyer’s professional obligation not to permit such conduct. The lawyer may chose not to call the client as a witness in a proceeding.

In cases where a lawyer feels that he or she has lost confidence in the client and can no longer work with the client, the lawyer may have to disengage himself or herself from the proceeding and withdraw from the record. If this is the case, when withdrawing, the lawyer must not disclose the reason behind the withdrawal (i.e., the client is going to lie!!) to the court or the other party, or the lawyer would be breaching the client’s confidence and committing professional misconduct.

Perhaps most importantly, the lawyer should educate the client that there may be legitimate alternative defense of his or her case without committing perjury, and encourage the client to act honestly.

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The Life of a Lawyer… (or the Lack of It).

Posted in: "All by Admin | No Comments Tuesday, July 29, 2008

Browsing online today, I came across several articles on the Ontario Lawyers’ Assistance Program about work/life balance. I would like to share some of the insights found there with my readers.

Apparently, these are the major stress factors for lawyers:

  • the need to “win,” whether in courts, at work, or at home.
  • the need to be in control, whether controlling the cases, the office, or personal life.
  • tight deadlines, including closing deadlines (real estate) and filing deadlines (litigation), and client demands.
  • overworking, or being overloaded – Many lawyers do not know how to say no, either to clients or superiors.
  • not eating or sleeping properly – This relates to the tight deadlines and overworking. When you spend so much time working, you let go of taking care of yourself.
  • inappropriate forms of stress relief – This includes excessive drinking, smoking, and lack of exercise.
  • perfectionism – Many lawyers have high expectations of themselves, whether at work, at home, or at the courthouse.
  • financial pressure -  Some lawyers, especially new calls, live beyond their means to match their colleagues’ lifestyles; overspending leads to financial pressure.

What can you (as a lawyer or a loved one) do to help? I suggest the following:

  • Set out clear priorities. Are billable hours/ income more important than watching your children grow up?
  • Take time off. Turn off your Blackberry (or computer, email, etc.) at home. Most things that come in on a Friday afternoon can wait until Monday morning.
  • Keep your own perspective. You are not your client. No matter how entrenched your client is with the litigation/case, you have a duty to your client and yourself to stay cool-headed and objective.
  • Eat properly. You feel better when you eat properly. This is a physiological fact.
  • Exercise. This is a very real and effective way to channel your stress into positive energy.
  • Lean to say no. It’s as simple as that.
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“Laid Off” Before Your First Shift: Remedies

Posted in: "All by Admin | No Comments Monday, July 28, 2008

NOTE: THIS IS NOT LEGAL ADVICE.

Local TV station CP24 reports this story about some Ford workers being “laid off” before the start of their first shift. Apparently, quite a few people were hired by Ford not long ago. They all quit their old jobs and were eager to join Ford. Only they were told today (3 days before their shift start) that their first shift is being delayed.

Although the workers are not technically “laid off” (their employment is only being delayed), these workers are without jobs for the moment. Besides acknowledging all the furor in the community, I want to comment on  possible remedies in this situation.

First of all, if the workers have signed their contracts, the law of contracts will govern this incident. Generally, the law of contracts offers remedies that treat the parties as if the contract were carried out. If this is the case, Ford should be offering compensation to honour the contracts in question.

However, things become trickier if there are no written contracts in place. By virtue of being hired, the workers may nonetheless be able to establish that there are indeed employment contracts between the parties, albeit they are without express terms.

On occasion, a party may be able to claim what is called “reliance damage.” If this type of claim were successful, the courts would give the grieved party, the plaintiff, some compensation for expenses attributable to the contracts. The plaintiff, however, would be required to demonstrate reasonable reliance on the contract, and the losses in question must be within the contemplation of the parties when the contracts were entered into.

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Re: “Legal Aid Urged for Middle Classes,” Toronto Star, July 26, 2008

Posted in: "All, Family Law, Legal Aid Ontario by Admin | No Comments Saturday, July 26, 2008

Today, the Toronto Star published this article about Legal Aid Ontario’s failure to serve the middle class . (Click here to read the article “Legal Aid Urged for Middle Classes”, July 26, 2008.)

The major complaints about legal aid in Ontario, according to the article, are that

(1) The stringent terms of financial eligibility fail to serve even  lower-middle-class workers;

(2) The (almost) below-cost pay for LAO funded cases is destroying the system.

As a lawyer who accepts legal aid, I offer the following comments:

I agree that the financial eligibility for Legal Aid is too stringent. One of the mandates of Legal Aid Ontario when it was established 40 years ago was to serve “individuals with modest means.”

However, in today’s reality, even individuals earning as little as $16,600 annually after tax may be rejected for LAO funding. Many individuals facing dire legal problems simply do not have access to LAO because their income is slightly above the prescribed limits. Many of them are forced to represent themselves, often with very poor results.

In my opinion, self-representing individuals often use up more court time and resources, as they are trying to weave their way through the legal system without little or no assistance. I suggest that the public would be better served if these self-represented individuals were provided with legal assistance and representation, since the court system would become more efficient.

The second part of the challenge is that LAO pays lawyers too little. LAO currently pays $78-$98 dollars per hour. According to the article, the petty pay is draining the pool of practitioners who are willing to take on cases.

As a practitioner, I agree that lawyers should be compensated more, but rather than increasing the hourly rate, more working hours should be authorized.

Speaking for myself, the number one problem that deters me from taking on a case is the fact that unrealistically few hours are authorized for certain cases. Generally, a “simple” family law LAO certificate allows 8 to 12 hours for a separation matter.

It often turns out that things are more complicated under the surface, and the matter soon mushrooms into a major case that requires more than double the authorized hours. LAO Solicitors, who are obliged to finish the case under the authorized number of hours, often end up working at 30% to 40% of the prescribed rate because the hours that exceed the authorization are seldom properly compensated, if they are compensated at all. Nothing destroys the morale of the lawyers faster than being forced to work at a heavily discounted rate. Would you keep your job if you were required to take a pay cut of 70%?

There is definitely room for improvement within the current legal aid system. At the same time, I do think that there are many competent counsels who accept legal aid with great pride. They work diligently and serve their clients faithfully. I think they deserve a round of applause.

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Further Notes on Bill C-61

Posted in: "All, Copyright and Trademarks by Admin | 1 Comment Friday, July 25, 2008

A while ago I wrote to the editor of NOW Magazine about Bill C-61 (you can read the letter here). The letter was published on July 15, 2008 (click here for the web version). In the letter I mentioned that it is legal to rip a otherwise legally obtained DVD for personal use.

A letter written by Kent Wakely of Toronto was published by NOW  on July 23, 2008 (read it here), indicating that anything done to circumvent the anti-copying technology would be illegal under the bill. Among other thing, Mr. Wakely indicated, ripping a DVD is for sure illegal.

I wish to add a note. Ripping a DVD would be illegal if the ripper program circumvents a “technological measure” that is encrypted on the disc. Apparently, accordingly to Mr. Wakely, all commercially available DVDs come with some kind of anti-copying device. Sadly, this is true.

However, Bill C-61 does not repeal the fair-dealing exception. As much as circumventing copyright  is an infringement, fair dealing for private research or study is not an infringement.

I think it is reasonable that ripping an encrypted DVD for personal viewing, without further sharing, would safely fall under this category.

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Keep Your Hands Off… My Assets!

Posted in: "All, Family Law by Admin | No Comments Thursday, July 24, 2008

Today I held a workshop on copyright, trademark and contract laws with the Entrepreneurship Program of Youth Employment Services. We had an interesting discussion about how to protect your assets by entering a marriage contract.

Typically, the (legally married) spouses, at the breakdown of the marriage are entitled to what is called “equalization.” This means, the spouse with less net worth is entitled to 50% of the difference between wealth of the spouses’.

One way to shield your assets from this process is to enter into a domestic agreement. However, not everything can be shielded, or excluded, from the equalization process.

Perhaps the most notable item that cannot be excluded from the equalization process  is the matrimonial home.

This exclusion has important consequences. It means any money that goes into the matrimonial home is subject to equalization, regardless of the agreement of the spouses, and whether the money in question is otherwise entitled to be excluded from equalization.

For instance, certain insurance proceeds are excluded from the equalization process by the statute. However, if you use the insurance proceeds to pay down the mortgage of the matrimonial home, you will not be able to exclude the amount later when the marriage breaks down.

Sadly, when most people get wind-fall money, such as insurance proceeds, they usually pay down the mortgage of the matrimonial home (unless things have gone sour enough). Once the wind-fall money is paid into the matrimonial home, it is then automatically subject to equalization.

Until next time, try to keep your spouse’s hands off…

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Setting Aside Domestic Contracts

Posted in: "All, Family Law by Admin | No Comments Wednesday, July 23, 2008

NOTE: THIS IS NOT LEGAL ADVICE

A while ago I wrote about the requirements of entering a valid domestic contract. (You can read it here.)

Today I want to talk about what you need to set aside, that is, to cancel an otherwise valid domestic contract.

Domestic contracts, like all other contracts, are not exactly written in stone. To cancel a domestic contract, the parties can simply enter into a new contract and agree to end the old.

However, this is often not easy, especially when the relationship has turned sour, and the spouses are at each other’s throats.

Therefore, under Family Law Act, the legislation provides a few conditions in which an otherwise valid domestic contract may be set aside by the courts. In plain English, it means if:

  • a spouse did not receive independent legal advice;
  • the other side has hidden assets from the spouse, or misstated the value of the assets;
  • the other side has threatened not to remove a religious barrier preventing the spouse from freely remarrying within the religion;
  • does not have the capacity to enter into contract, or enters into the contract under pressure;
  • the contract is otherwise void or voidable according to the law of contracts;

then the courts may set aside the contracts in question.

On the contrary, the courts are reluctant to set aside a domestic contract if the parties are:

  • are sophisticated (e.g. being lawyers)
  • receive independent legal advice regarding the contract
  • enter into the contract under their free will
  • do not threaten religious barriers to remarriage.

Finally, I wish to stress the importance of obtaining legal advice if you wish to apply to set aside a domestic contract. The courts are reluctant to do so without good reasons in law. These reasons must be properly drafted and presented to the court. You will save considerable effort and energy with the assistance of a competent counsel.

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Criminal Offences Under the Copyright Act

Posted in: "All, Copyright and Trademarks, Legalese Dictionary by Admin | No Comments Tuesday, July 22, 2008

In yesterday’s blog, I mentioned that the Copyright Act is, “for the most part,” a statute providing civil remedies for copyright holders. Today I want to talk about criminal offences under the Copyright Act.

It is an offence for anyone to…

  • sell or rent out an infringing copy,
  • import for sale or rental an infringing copy,
  • distribute widely or by way of trade infringing copies (e.g., through music sharing and downloading),
  • exhibit in public an infringing copy,
  • knowingly possess or adapt any plate for the purpose of making infringing copies,
  • knowingly, for private profit, cause copyright-protected work to be performed in public without the consent of the copyright holder.

The punishment for the above-mentioned offences depends on whether the Crown elects to proceed summarily or by way of indictment. The liabilities range from up to six months of imprisonment to up to 5 years, and from up to $25,000 dollars to up to $1 million.

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Intention & Copyright Infringement

Posted in: "All, Copyright and Trademarks by Admin | No Comments Monday, July 21, 2008

Today I want to talk about “I didn’t mean to…” cases.

Copyright law is, for the most part, a statute that provides civil remedies to copyright holders in the event of infringements. That means, the civil standard applies to copyright actions.

Unlike criminal proceedings, which require both mens rea, or the intent to harm, as well as actus reas, or the act of harming, most civil proceedings do not require mens rea in establishing the cause of action.

For example, in a motor vehicle accident, it doesn’t matter whether the defendant meant to cause the collision. The fact that a collision happened is enough for the plaintiff to start a proceeding.

In my experience, most clients generally tell me that they didn’t mean to infringe someone else’s copyright. I then must explain that proof of intention is not required in establishing copyright infringement.

Intention may be relevant in establishing the damages available to the plaintiff, but that is a topic for another day.

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