I am pleased to announce that new contents have been added to the site.
An updated version of “Investing in a Standard Commercial Contract” is now available under “Contracts and Other Commercial Agreements.”
A new section on “Integrated Small Business Solutions” is now available.
I am pleased to announce that PSWLAW is a proud sponsor to the “New Business Movement,” a one-day convention to celebrate entrepreneurship presented by Youth Employment Services.
The New Business Movement will be held on Thursday, October 30, 2008 from 9:00 am – 4:00 pm at Scadding Court Community Centre, 707 Dundas St. W. (at Bathurst) in Toronto. Tickets are $20 and may be purchased by phone at 416-504-5303.
(Click here for the poster in PDF.)
Highlights of the event include:
My office is in the process of producing brochures on launching a new business and standard contracts. I will be at the booth from 9:00am to 12:30 am. Be sure to come by and say hello!
Yesterday I wrote about the difference between criminal proceedings and civil proceedings. (Click here to read the post.) Today I’d like to explore the topic further and talk about the role of criminal convictions in civil proceedings.
Because in criminal cases, the state must prove the case “beyond reasonable doubt,” the threshold for a conviction is very high. But in civil cases, a plaintiff only has to prove his or her case on the balance of probabilities.
Under the legislation in Ontario, if an accused is convicted and subsequently sued, the criminal conviction is admissible as evidence, the prima facie (on the face of it) proof of the accused/defendant’s liability. The accused/defendant will not be allowed to re-litigate his or her case in the civil court, unless there is compelling fresh evidence that may cast serious doubt on the conviction.
What if the accused is acquitted in the criminal proceeding, and is subsequently sued?
In this case the state has failed to prove the accused’s guilt beyond reasonable doubt. However, it doesn’t mean that the plaintiff in the civil proceeding cannot prove his or her case against the accused on the balance of probabilities. Therefore, the accused’s acquittal does not bar the plaintiff’s claim in a civil proceeding. For example, O.J. Simpson was acquitted in his criminal trial. Nonetheless, in the civil action against him, the plaintiffs were successful in proving their case and were awarded with damages.
That said, I hope you will never be sued, let alone convicted. On the other hand, if you are considering suing somone who has been convicted, please don’t hesitate to give me a call.
Today I went to a Continuing Legal Education (CLE) at the Ontario Bar Association. The topic was “Criminal Law for Civil Litigators.” As a civil litigator who on occasion works with criminal defence lawyers, I must say I enjoyed learning about the interaction between criminal and civil proceedings arising from the same facts. In today’s blog, I’d like to talk about the difference between criminal proceedings and civil ones.
In a criminal proceeding, the state seeks to punish those who disregard the laws governing the public order. Of course, the state cannot exercise this power unless the accused is found guilty after a fair trial.
The threshold for finding an accused guilty is “beyond reasonable doubt,” which is very high indeed. Because of the coercive nature of a criminal proceeding (where the state prosecutes the accused), the accused is afforded many rights, including the right to remain silent and the right against self-incrimination. Under the Canadian Charter of Rights and Freedoms, the state also has an obligation to disclose all evidence against the accused, whether the state intends to rely on it during the trial or not.
In contrast, in a civil proceeding the plaintiffs seek remedies against the damages done by the defendants. Civil proceedings generally involve monetary damages, while a defendant’s liberty is seldom at stake.
The plaintiff will be successful if he or she can convince the court that he or she has proved the case on the balance of probabilities. To ensure speedy resolution of the disputes between the parties, procedural rules have been put in place. For example, the rules of discovery mandate that parties must disclose all relevant documents, whether they are favourable to the disclosing party or not.
Abuse of Process is a doctrine that originated in criminal law, but has long been recognized as applicable in the civil law context. In essence, it refers to proceedings that are initiated by parties with ulterior motives, or that the parties are litigating for gains over their opponents unrelated to the cases being litigated.
Here’s an example. Suppose there’s hostility between your co-worker and you because both of you are competing for a year-end bonus. One day your co-worker accidentally spills coffee on you. There is a stain on your shirt but you are otherwise OK. It then occurs to you that this is a good opportunity to start some trouble for your co-worker. You initiated a complaint against your co-worker at the Human Resources Department.
Because the real reason behind your complaint is not the coffee stain, but rather your hostility to your co-worker, you have an ulterior motive behind your claim. Should this claim proceed before the courts (civil or criminal), your co-worker may invoke the doctrine of abuse of process and ask the court to dismiss your claim.
Although at first glance, abuse of process appears a convenient tool for getting your opponent’s case dismissed (you can probably find an ulterior motive if you look really hard at the case). it is rarely applied by the courts. The courts are reluctant to dismiss a claim with merit based solely on the allegation of an ulterior motive.
To successfully invoke this doctrine, you must bring a motion before the court and present unequivocal evidence that demonstrates that the other party clearly has another agenda than to resolve the conflicts before the courts.
The court, in response, will closely examine the case and decide whether the doctrine applies to. The court may dismiss part or all of the opposing party’s case if you are successful. However, if you are unsuccessful, the court will likely find your motion improper and order costs against you on a substantial indemnity basis. For this reason, most civil litigators rarely bring a motion solely on the basis of abuse of process when seeking to have the case dismissed.
In the legal community, particularly among criminal defence lawyers and consumer-end civil litigators, we often refer to the Superior Court as “upstairs.” This is because most criminal offences are tried in the Provincial Court, and small civil claims are dealt with in the Small Claims Court. Certain family law matters may also be dealt with in the Provincial Court, but when property division is involved, the case must be filed at the Superior Court.
Although technically the Small Claims Court is a branch of the Superior Court, there is an entirely different set of rules at the Small Claims Court to facilitate easy access by the public. The monetary limit to the jurisdiction of the Small Claims Court is currently set at $10,000.
There are many considerations that must be taken into account when you choose to go “upstairs” to the Superior Court. Perhaps the most significant one is the many formal requirements in the Superior Court.
(A bit of trivia: one of these formal requirements is that the lawyers must be gowned when speaking to a judge of the Superior Court.)
Unlike the Small Claims Court or summary-conviction matters before the Provincial Court, only duly licensed lawyers acting as barristers may appear before the Superior Court. The lawyers handling the case are recognized as the “Solicitor of Record,” and may not withdraw their services without the Court’s permission. For this reason, lawyers generally exercise caution when giving out estimates for cases before the Superior Court.
Cost is an important consideration when litigating in the Superior Court. In contrast to the Provincial Court, at the Superior Courrt fees are payable upon issuing claims/applications, filing defences/answers, placing the matter for a hearing (set-downs), summoning witnesses, and certifying copies of documents.
In many cases personal service is required for the delivery of the documents. Law firms generally hire process servers for these tasks. Beyond the fees payable to the Court, a litigation levy must be paid to the lawyer’s professional indemnity insurance company, known as LawPro.
The biggest cost, however, is generally incurred by the lawyers for the preparation of hearings. Often, the parties are required to file briefs, formally called factums, prior to the hearing. The preparation time ranges from several hours to days, if not weeks, depending on the complexity of the matter.
These requirements all add to the escalating cost of litigation. Excluding court-ordered costs, a half-day motion in the Superior Court may cost a client anywhere from $3,000 to over $10,000; for a week-long trial, it may cost over $100,000. Indeed, going “upstairs” comes with a hefty pricetag.
Lawyers Gone Bad
By Philip Slayton
2007, Penguin Group (Canada)
294 pages; $36.00 hardcover, $13.50 mass market paperback
Welcome to the book review section of my blog! As reading is my favourite past-time, I’d like to share some thoughts with you about the books I’ve just read.
When Philip Slayton’s book Lawyers Gone Bad first came out in 2007, Maclean’s magazine ran an article commenting on how lawyers are bad people (I’m paraphrasing); the article triggered an uproar within the legal community. The Canadian Bar Association went so far as to issue a press release condemning the article.
After reading the book, I think the uproar was an overrated reaction. True, Slayton’s book described and discussed a dozen dishonest lawyers who got disbarred; however, nowhere in the book does the authoer imply that all or most lawyers are bad people. In fact, the author states that most lawyers are honest hardworking people, and the dishonest ones are the exception rather than the rule.
Individuals featured in this book vary from dishonest lawyers who mishandled clients’ funds (Chapter 2 on Donaldson and Chapter 3 on Cooper), to lawyers who helped clients commit fraud (Chapter 11 on Shead and Chapter 12 on Wirick), to lawyers who abused their positions to gain sexual favours (Chapter 8 on Johnston and Chapter 9 on Bomek).
The book is well-researched. The author diligently gathered information from court records, newspaper clippings, and sometimes interviews with the featured individuals. The cases are described in detail, often with footnotes. While some readers may find the notes informative, I found them distracting.
I also believe that Slayton’s narrative approach leaves some room for improvement. The author too often quotes directly from court files and newspapers, and the result is an inconsistent tone. At times the flow of the stories is interrupted by minor details that are not central to the case.
While I won’t comment on the individual cases discussed in the book, it is fair to summarize the lawyers profiled as individuals who made poor decisions in their careers.
Suffice it to say that these are sorrowful stories that could easily have happened to rogue members of any other profession – doctors, nurses, teachers, accountants. I don’t think the book paints lawyers in a bad light; rather it serves as a reminder to the public, as well as the legal profession, that every action has its consequences.
I am pleased to announce that the following new contents have been added on this site.
Coming soon in my blog:
Internet shopping is an icon of the cyber age we live in. Once a novelty, now it is part of our daily living. Recently, I was consulted by clients who do their business online. I’d like take a few moments now to share some of the issues of internet shopping with you.
Issue: Terms of Payment
Because online buyers and sellers do not deal face-to-face, credits come with high risk, as do installment payments. Scams, where payments are not honoured or goods not received, are common.
Therefore, I suggest to my clients that they use payment services that can be tracked and confirmed. For example, either PayPal or credit card payments are preferrable over money orders or cashier’s cheques. Never send cash in the mail.
Note that these services are not free. You should include these charges when you’re comparing online shopping with offline shopping.
Issue: Items Received Differ Substantially from Expectation.
Because of the nature of virtual transactions, buyers can only rely on pictures and other remote representations of the seller. Buyers generally have little or no independent verification as to the accuracy of the description of the item.
One of the biggest problems I have encountered is that unsavoury vendors often pass off counterfeit goods as genuine ones. In this scenario, although in theory there are remedies in law that may provide some relief to the buyers, realistically it is often nearly impossible to pursue these remedies.
I suggest to my clients that buyers must be aware when it comes to online transactions. Only buy from reputable vendors who provide detailed, reliable information on their goods. If the deal seems too good to be true, it probably is.
Issue: Dispute Resolution
Even if there is no misrepresentation involved in the transaction, goods may get damaged or lost when they are shipped. Buyers may also become unsatisfied for other reasons, such as unreasonable delays, or unexpected customs exams, charges, or taxes.
Dispute resolution becomes particularly difficult when buyers and sellers do not reside in the same jurisdiction, as is the case in many internet transactions.
Although in Ontario you may bring a suit against foreign residents as long as they have a real and substantial connection with Ontario, the concern lies in the enforcement of the final ruling. Foreign defendants generally have few if any assets in Ontario, and enforcement of an Ontario judgment outside of the jurisdiction may encounter many difficulties, including concerns of cost.
In summary, online transactions involve certain risks that the buyers and sellers must be prepared to accept. While it is true that many online transactions offer substantial savings, you should pay attention to the following aspects:
Most people have heard of notaries public, but few know what they do. I’d like to talk about what notaries public do and also how to become one.
Notary public is one of the oldest professions in existence, dating back to Roman times.
In modern times, the power of notaries public varies from jurisdiction to jurisdiction.
Broadly speaking, Notaries public are essentially state-appointed officers who are entitled to administer oaths and attest to the authenticity of documents. In certain civil law jurisdictions, notaries public are entitled to practise law. However, this is not the case in most common-law jurisdictions, such as Ontario, UK, or the US.
In Ontario, notaries public are appointed under the Notaries Act. All lawyers in Ontario are entitled to apply for an appointment (with a small filing fee); non-lawyers who are Canadian citizens can become notaries public subject to examination by a judge or a public servant, although their notarial power may be limited in territory or in function, or both.
In plain language, the notary public provides the following services (please refer to the Notaries Act for the exact wording):
Most clients think notarization makes a document more important or more acceptable in law; this is a myth. Over the years of my law practice, I’ve had clients ask me to notarize various documents. However, legally speaking, most of the documents have not required notarization, and notarizing them would have meant absolutely nothing in law. Thus, at times I find myself feeling conflicted while dissuading clients from obtaining my notarial services.
@PSWLaw_TO