Monthly Archives: March 2009

Legal Aid Ontario Year End Celebration!

Posted in: "All, Business Development, Legal Aid Ontario by Admin | No Comments Tuesday, March 31, 2009

The fiscal year of Legal Aid Ontario (LAO) runs from April 1 to March 31 of the next year. Today marks the year end of year 2008-09, and many Legal Aid practitioners have good reasons to celebrate.

Lately LAO has been dragging its heels in processing accounts where dicstretionary increase requests. According to the billing manual, discretionary increases are supposed to be processed within 60 days. However, there have been major delays – accounts were only processed after some 90 days. My friend Jack has an account submitted in mid December 08 and still hasn’t received a dime.

We suspect it’s because LAO is running out of the allocated funds for discretionary increase towards the year end.

While this sounds whiny, there are merits to my complaint here. It costs a lot of money to litigate (where most of my cases lie) – court filing fees, process server charges, medical reports, transcriptions, audio and video records, requisition of third-party documents, photographs, fax, photocopies, witness fees, expert witnesses, courier fees, etc. – it all adds up. For big cases, these  costs (what we call “disbursements”) can be greater than the lawyer’s fees, especially when several expert witnesses are involved.

Under the terms of LAO, lawyers are required to pay the disbursement charges up front and subsequently bill to LAO for reimbursement. For small firms without large cash reserves, this adds to the cost of operation. Many small firms are thus forced to take on commercial loans in order to keep the business running.

With the new fiscal year starting tomorrow, I hope LAO can be more efficient in dealing with accounts with discretionary increases, so we LAO practitioners don’t have to worry about ballooming our debts.

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Public Inquiries

Posted in: "All, Administrative Law, Legalese Dictionary by Admin | No Comments Monday, March 30, 2009

The Oliphant Commission of Inquiry concerning the business dealing of Schreiber and Mulroney is finally underway today. Today I’d like to talk about public inquiries.

The government may, from time to time, establish commissions to conduct inquiries to investigate matters of interest. This typically happens when public interests are involved, and that alternative actions, such as criminal prosecution and civil action, are not satisfactory. For example, plane crashes and other natural and artificial disasters often result in an inquiry.

An inquiry may be established either through a special law, such as the Hospitals and Charitable Institutions Inquiries Act* in Ontario, or through the general legislation concerning the establishment of a public inquiry, such as the federal Inquiries Act.+

No matter how the commission is established, there are common threads that governs the commission. For example, certain common law doctrines, such as procedural fairness and natural justice, will always apply.

In addition to the doctrines above, most commissions have statutory powers to issue summons, subpoena, or request to compel a witness to testify. The commission may also conduct investigation over documents and transactions and take evidence (whether oral or real). Finally, a commission established under the federal Inquiries Act may confer its power to an international commission or tribunal.

A commission of public inquiry is not a court of law. Therefore, the commission cannot determine criminal or civil liabilities.

At the end of a public inquiry, the commissioner publishes his or her findings and makes recommendations to the government. Although the recommendations are not binding, they may be helpful in drafting future legislation and making improvement to current practices.

* R.S.O. 1990, c. H15

+R.S.C. 1985, c. I-11

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Website Facelift – What Works?

Posted in: "All, Business Development by Admin | No Comments Friday, March 27, 2009

My friend Jack is considering revamping his website to drum up some business. Currently his website is skeletal with only 5 pages. We had a lengthy discussion on how a site should look like in web 2.0. I share the highlights of our discussion below:

Web 2.0 is dynamic.

Gone are the days of stagnant yellowpage-style sites that display an image with your contact information. Users in the 21st century desires useful information.

Users also expect the information is up-to-date. Therefore, constant updates are helpful in attracting visitors. A blog can be very useful in providing updates.

A sense of who you are

A website of a service provider should give the readers a sense of who will be providing the service and what to expect. For example, it may be useful to have a portfolio available online if you’re an artist.

Unfortunately, given the nature of the legal profession, a big chunk of a lawyer’s work is confidential and may not be disclosed. In this case, general information on the area of practice would be appropriate.

User-friendly interface

Whether you’re selling services or merchandise, you won’t get customers unless they can find your contact information easily. As a rule, your main contact information, whether email, telephone, or fax, should be easy to locate. If someone can’t find your phone number when they need to, they’ll move onto the next provider.

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Harmonized Tax Brings Little Harmony for Lawyers

Posted in: "All by Admin | No Comments Thursday, March 26, 2009

The National Post reported this story today on the McGuinty government’s plan to introduce the Harmonized Sales Tax (HST) to Ontario.

According to the story, this tax initiative is aimed to reduce the cost of doing business in Ontario.

At the present time, many retail businesses are required keep separate records on the Provincial Sales Tax (PST)and the Goods and Services Tax (GST). The government claims that, in harmonizing the PST and the GST, business owners will be less burdened with administrative duties in record-keeping.

This is a problem for lawyers. At the moment, lawyers with gross revenue over $30,000 are required to collect the GST on behalf of the Canada Revenue Agency (CRA). But legal services and disbursements are not subject to the PST.

Currently, lawyers often waive the GST charge on walk-in services, such as notarization and summary advice. They accordingly absorb the 5% GST themselves as a cost of doing business.

If the HST becomes reality, it will be applicable to legal services. The client will face a steep tax-hike on legal services, paying the HST of 13%. Given the approximate 8% increase in tax, lawyers will be less inclined to absorb the tax themselves and may pass the cost onto the clients.

In the 21st century, when most transactions are computerized, it’s hard to believe that the harmonizing of the PST and the GST will bring much relief to a business owner’s administrative burden regarding to tax-collection. Rather, I suspect that the anticipated introduction of HST is rather an attempt to raise tax revenue from many currently PST-exempt goods and services, such as the legal services I provide.

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When the Family Responsibility Office (FRO) Seeks Jail Time

Posted in: "All, Family Law by Admin | No Comments Monday, March 23, 2009

Yesterday I wrote about the authority of the Family Responsibility Office (the FRO) in enforcing family law support obligations. Today I’d like to talk about what happens when the FRO seeks jail time under the Family Responsibility and Support Arrears Enforcement Act.*

The Ontario Court of Appeal recently ruled in Fischer v. Ontario (Family Responsibility Office)+ that imprisonment for non-payment of family law support orders is the last resort. The court indicated that “Something more than non-payment is required. The payor’s conduct must demonstrate a wilful and deliberate  disregard for the obligation to comply with court orders.”

The liberty of a payor is potentially put in jeopardy when the director of the FRO seeks a committal order (jail time). Therefore, fairness in the context of a proposed committal order requires that:

-the court explain to the payor the nature of the proposed committal order and the effect it could have on the payor’s liberty;

-the court explain to the payor why it is considering making the committal order; and

-the payor be given an opportunity to respond to the reasons offered by the court and to advise the court of any additional facts that may be relevant to the court’s decision to make the order.

Of course, the steps listed above are only broad-stroke guidelines. As circumstances in individual cases vary, a rigid procedural regime wouldn’t be helpful. Counsels for the payors must be vigilant in ensuring that the payor is treated fairly, and that fairness is observed.

*S.O. 1996, c. 31, s. 41(10)

+(2009), 92 O.R. (3d)72, see also Morrison v. Allen (1988), 62 O.R. (2d) 790, 11 R.F.L. (3d) 225 (Div. Ct.), at para. 11, affg on this point Allen v. Morrison (1986), 56 O.R. (2d) 671; Ontario (Family Responsibility Office) v. Beliv (2006), R.F.L. (6th) 127 (S.C.J.) at para 29.

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Failure to Pay Support

Posted in: "All, Family Law by Admin | 3 Comments Sunday, March 22, 2009

NOTE: This article is provided for educational purposes only and does not constitute legal advice.

In Ontario family law support payments (spousal and child support) are administered by the Family Responsibility Office, often referred to as the FRO. The FRO enforces support obligations pursuant to court orders or registered domestic agreements on behalf of the recipient.*

What happens if a support payor refuses to pay?

Upon the filing of an order or a domestic agreement, the FRO has the power to deduct the support payments directly from the payor’s source of income, such as wages and salary. The FRO may also seize assets of the payor and/or register a lien against them.

If the payor doesn’t have the necessary income or assets to satisfy the amount payable, the FRO may administratively suspend the payor’s driver’s licence. Other licences, such as a licence granted under the Fish and Wildlife Conservation Act, 2006, may also be suspended.+

Besides the suspension of licences, the FRO may request a default hearing before the court, requiring the payor to provide financial information as prescribed by statutes and regulations, and to appear and explain the default. If the payor doesn’t show up, a bench warrant may be issued for the payor’s arrest.

At the default hearing, if no good reason is given to the court, the judge may order that the payor:^

(a) pay all or part of the arrears by such periodic payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears;

(b) discharge the arrears in full by a specified date;

(c) comply with the order to the extent of the payor’s ability to pay;

(d) make a motion to change the support order;

(e) provide security in such form as the court directs for the arrears and subsequent payment;

(f) report periodically to the court, the Director or a person specified in the order;

(g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur;

(h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the arrears are paid, whichever is sooner; and

(i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner.

It’s important to remember even if a payor is taken into custody (put in jail), time spent in custody doesn’t reduce the arrears owing. The on-going obligation to pay support doesn’t stop, either. After getting out of the jail, the payor will be responsible for the amount owing, including any payments that have become due during the payor’s jail time.

*Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

+This provision (Part V.1 Suspension of Licences under Fish and Wildlife Conservation Act ) is added to the Act on a day to be named by proclamation of the Lieutenant Governor.

^s.41(10)

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Mom’s Alienation Campaign Backfired

Posted in: "All, Family Law by Admin | No Comments Friday, March 20, 2009

No matter how bitter the divorce, the parents must always keep their children’s best interests in mind, ruled the Ontario Superior Court of Justice in A.G.L. v. K.B.D. et. al* last month.

The mother in this case was overtly controlling and didn’t permit the children to have any opportunity to spend time with the father. At trial, an expert clinical psychologist’s report indicated that the mother’s “level of vigilance and monitoring was unusual,” and that she was “unable to trust anyone other than her own mother to take care of the children” in her absence.

As a result, for example, the youngest child’s behaviour toward the father changed if her mother was not present. On one occasion, one daughter told her father “Don’t tell Mummy I did this,” referring to a hug and kiss she gave him.

What’s more shocking is how the mother infantilized her children. According to evidence presented at trial, one child at five years old was not yet toilet-trained, while another at three years old still used a bottle to feed at night.

Perhaps as a result of the mother’s manipulation, all three children (aged 9. 11, and 14 at the time of the trial) indicated to the court that they preferred to stay with the mother.

While the law generally place a great deal of weight on the preferences of children over age 12, indicated the judge, there are clear exceptions. One is where one parent has undermined the child’s relationship with the other. Accordingly, if the court finds that there has been parental alienation, “the child’s view cannot be seen as their own.”

In the end, the mother was stripped of custody and refused access to the children, as the court determined that she clearly did not have the children’s best interests in mind when trying to alienating them from their father.

This case is extreme. Seldom would a court strip a parent of the right to access the children without good reasons.

One the one hand, the harm to the children’s well-being as the result of the mother’s manipulation is undeniable. On the other, the court’s ruling will be difficult for the children to accept as they have lived with the mother for their entire life. As such, I suspect that the matter may be appealed.

*(2009), 93 O.R. (3d) 409

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Veterinary Euthanasia

Posted in: "All, Animal Welfare by Admin | No Comments Thursday, March 19, 2009

Veterinary euthanasia is the fancy name for putting an animal down. It refers to the practice of deliberately ending the life of an animal, using humane methods.

The decision to euthanize a pet is often gut-wrenching, even if it’s medically necessary. Veterinarians who perform or oversee euthanasia must be sensitive to the pet owner’s stress level while discussing the topic.

As euthanasia is often one of several options available in treating an animal, the veterinarian should explain to the client (pet owner) associated options with all costs involved, with clear distinctions made regarding what is best for the animal.

If the veterinarian sees no recourse other than euthanasia, the option should be communicated to the client with sensitivity and compassion. If the owner refuses to euthanize the animal and the animal will suffer to the point that a report to the Ontario SPCA needs to be made, the veterinarian should advise the owner and where feasible, make such a report.

Since euthanasia is a procedure that cannot be reversed, it’s recommended that the veterinarian obtain informed consent from the client beforehand. After the decision is made, euthanasia should take place as soon as possible in order to reduce pain, fear, and anxiety in the animal.

Finally, a veterinarian is not obliged to offer euthanasia as an option. In many cases, veterinarians may refuse to perform euthanasia if it is not medically necessary - for example, when an animal is no longer wanted as a pet. In that situation, the owner should be given options, such as surrendering the animal to a shelter or to the practice.

Ssee the College of Veterinarians of Ontario Guidelines, “Veterinary Euthanasia” (2008), online at www.cvo.org/uploadattachments/Euthanasia.pdf

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Summons

Posted in: "All, Administrative Law by Admin | No Comments Wednesday, March 18, 2009

From time to time, witnesses who are not a party to a case may be required to give evidence before a court.

In Ontario a subpoena is issued for criminal proceedings, while a summons is issued for civil proceedings. Both documents compel particular witnesses to attend before the court and give evidence. If a witness fails to show up, the court may issue a bench warrant for the arrest of the missing witness. Once apprehended, the witness will remain in custody until his or her evidence is no longer required.

In the Superior Court a summons to witness is issued by the court registrar upon the request of one of the parties; a summons may be issued accordingly under the Rules of Civil Procedure.

In administrative law proceedings, summons may be available pursuant to the Statutory Powers Procedure Act. However, not all tribunals issue summons on a regular basis.

For example, the Social Benefits Tribunal rarely compels a witness to attend and give evidence (I’ve never encountered this situation), while the Landlord and Tenant Board regularly issues summonses to witnesses who are not a party to the proceeding.

In practice, however, I rarely request a summons to witness without the witness’ consent, even if it’s available, as the consequences to the witness for non-compliance are grave. On the other hand, some witnesses request that a summons be issued so they can make arrangement with their employers. Therefore, before a summons is issued it’s a good idea to discuss whether a summons is required with your witness.

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“Tricky” Contract Terms

Posted in: "All, Business Development by Admin | No Comments Monday, March 16, 2009

A while ago I wrote about “Contract Red Flags.” Today I’d like to talk about “tricky” contract terms. While these terms often appear “harmless” at the first glance, they often give rise to unforeseen consequences, especially when you change your mind sometime after the execution of the contract.

Automatic renewal: “At the end of the initial term, this contract is automatically renewed for subsequent terms, unless the client gives a written notice of non-renewal at least 3 months before the end of the initial term or any renewal period…”

If you are agreeing to this, you are essentially signing a contract that will run forever. Of course, in theory,  you can put a stop to it. However, in life, most people simply forget or don’t bother to cancel such contracts.

Discretionary increase of fees: “The monthly fee due pursuant to this contract may be increased annually by the company in accordance with its standard practices.”

If you agree to this, you are essentially giving the service provider a signed blank cheque so they can fill in the numbers later. Are you sure you want to do this?

Unilateral modification to the contract: “The client acknowledges that the company may, from time to time, unilaterally modify this contract if such modifications do not substantially affect the rights and obligations of the client.”

While the wording “substantially affect the rights and obligations of the client” is subject to judicial interpretation, consumers rarely bother to contest whether the modifications are really “substantial.” In fact, given the cost of litigation, very few such modifications are worth disputing. In the end, service providers get away with most unilateral modifications to the contract.

The terms above are quite outrageous under close examination. However, they are standardcontract terms in many industries, including telecommunication and advertising.

Sales representatives often do not have the authority to amend the terms according to your preferences. Therefore, you face a “take it or leave it” situation. If you are not unsure about signing a blank cheque over to the service provider, perhaps you should just walk away.

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