Monthly Archives: March 2009

Don’t Shoot the Messenger

Posted in: "All, Family Law by Admin | No Comments Sunday, March 15, 2009

We lawyers are obliged to follow and carry out the instruction of our clients. Most of the time, the instructions are reasonable and we carry them out diligently.

However, there’re clients who won’t listen to their lawyers’ advice and insist on proceeding in their own way.

This creates a problem for the lawyer. Because the communication between a lawyer and a client is privileged, the contents of the communication may not be divulged without the client’s express consent. Therefore, the lawyer may not explain to the court that the client is being unreasonable or that the client is proceeding against the lawyer’s legal advice. Rather, if the lawyer remains on the case, he or she will have to diligently advance the client’s interests, even if doing so will attract criticism from the court and the opposing party.

Personal attacks or threats to a lawyer from the opposing party (often self-represented) are not unheard of. For example, I’ve received racist comments (“Go back to your country“), personal attacks (“You sick ****“), character assassination (“You’re breaking up my marriage for a couple bucks,”) and even death threats (“Drop dead and die“).

These attacks and/or threats seldom work to the attacker’s advantage. Rather, they merely reinforce the hostility between the parties and prolong the litigation process. “I’d rather pay you than pay him/her,” as I often hear in divorce cases, never serve anyone’s best interest.

If you’re a self-represented party who is frustrated with the opposing party’s lawyer, I suggest that you obtain representation before lashing out.

Lawyers are able to assess the situation objectively – something most self-represented litigants cannot do on their own. Often, bringing in representation opens up communication between the parties. Once the parties are able to communicate calmly with each other through counsel, the items in dispute may be resolved through negotiation.

Whatever you do, don’t go around shooting the messenger. It won’t help your case.

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Happy St. Patrick’s Day 2009

Posted in: "All by Admin | No Comments Sunday, March 15, 2009

Happy St. Patrick’s Day 2009!

Did you know…

Saint Patrick is most known for driving the snakes from Ireland. It is true there are no snakes in Ireland, but there probably never have been – the island was separated from the rest of the continent at the end of the Ice Age. The wet, cold climate of Ireland is hostile to cold-blooded creatures like snakes, which depend on their environment for the heat that is necessary for bodily functions.

In many old pagan religions, serpent symbols were common and snakes were often worshipped. The idea of driving the snakes from Ireland was probably symbolic of putting an end to that pagan practice.

Image courtesy of stock.xchng; all rights reserved.

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The Human Rights Code vs. Administrative Tribunals

Posted in: "All, Administrative Law by Admin | No Comments Thursday, March 12, 2009

Continuing on this week’s topic of administrative law, I’d like to talk about the Human Rights Code* and administrative tribunals.

Section 17 of the Ontario Human Rights Code provides the following:

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

While the foregoing paragraphs may seem confusing, it boils down to this: persons with disability are entitled to accommodation, unless such accommodation will cause undue hardship on the service provider.

In modern Canadian law, it’s long been settled that administrative tribunals, in making their decisions, are bound by the human rights legislation.^ This principled approach applies to both the procedure of the tribunals and the substantive decision-making.

Procedurally speaking, the tribunals are required to provide accommodation for persons with disabilities. This may include providing barrier-free hearing rooms, telephone or video conference facilities, and frequent breaks.

In rendering a decision, the tribunal must factor in the person’s disabilities. For example, if a tenant suffers from mental illness and occasionally makes loud noise involuntarily, the tribunal adjudicating the matter will have to decide whether it would be reasonable for the landlord to provide accommodation (i.e. to tolerate the noise) without undue hardship.

*R.S.O. 1990, c. H.19

^Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27

+Walmer Developments v. Wolch (2003), 67 O.R. (3d) 246

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Book Review: Lawyerland by Lawrence Joseph

Posted in: "All, Book Review by Admin | No Comments Tuesday, March 10, 2009

Lawyerland: What Lawyers Talk About When They Talk About Law

By Lawrence Joseph

(1997) Farrar Straus Giroux; 225 pages; $31.00

What do lawyers talk about when they talk about law?

Joseph, a law professor at St. John’s University School of Law, reveals what lies underneath a lawyer’s skin through fictional interviews with lawyers from different areas of the law -  criminal defence , corporate commercial, labour, personal injury, you name it – including judges.

Throughout the book, Joseph’s focus is not on what a lawyer does for a living – that’s rather apparent. Rather, through concisely written dialogues, Joseph presents how lawyers think, process, and live as lawyers.

Underneath the professional “tough skin,” it’s surprising how vulnerable and timid lawyers can be. The lawyers revealed in this book are filled with self-doubt and insecurity, but also sometimes egotism and arrogance.

Joseph engages interviewees with questions such as whether law is a “business” and whether “justice” matters.

The answers are far from clear. A young D.A. casually rants on the deficiencies of the criminal justice system while appraising the quality of his lunch. A federal judge talks about her keen observation of litigants in her courtroom shortly before she states that “lawyers don’t live in the real world.”

The dialogues are sometimes shifting and without focus. However, I suspect the author has intentionally constructed them that way. As the tone of the book is even and non-judgmental, readers may occasionally lose track as to what is being debated by the characters.

The book sheds insight on what lawyers talk about when they talk about law: this bittersweet profession.

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If They Don’t Show in Court…

Posted in: "All, Administrative Law by Admin | No Comments Monday, March 9, 2009

As a civil litigator, I constantly come across this question: what if they (the opposing party) don’t show in court?

Well, what will happen depends on where you’re at.

“No-shows” happen less in the higher courts, such as the Superior Court or the Court of Appeal, where a set of rule is in place to stream-line the litigation process and prevent surprises like this. If a the defendant fails to comply with the filing deadline, he or she may be noted in “default,” and the matter will proceed with a default judgment against the respondent.

However, things are quite different at the administrative tribunals.

There, the common law dictates that all litigants should be given the opportunity to participate meaningfully at a hearing.

Therefore, if the opposing party fails to attend the hearing for legitimate reasons, such as illness, an accident, or the lack of a representative, the hearing will likely be adjourned to the next reasonable date available.

At the same time, this is not to say that the litigant will have a free pass in delaying the proceeding. If the causes for the delay can’t be addressed within reasonable time, the tribunal may decide to proceed with the hearing even without the opposing party present.

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The Curious World of Administrative Law

Posted in: "All, Administrative Law by Admin | No Comments Sunday, March 8, 2009

Administrative law is one area of law often overlooked by lawyers.

Perhaps it’s because one need not be a lawyer to appear before administrative tribunals (licensing and exemptions are available), or maybe it’s because the monetary stakes are not high enough to justify a lawyer’s fees. Therefore, sometimes it can be tough to find a competent lawyer to handle your administrative law case.

Generally, the powers of the administrative tribunals come from the enabling legislation. For example, the Landlord and Tenant Board‘s power comes from the Residential Tenancies Act; the Social Benefits Tribunal, from the Ontario Works Act; the Ontario Human Rights Tribunal, from the Human Rights Code.

In addition to the enabling legislation, the tribunals are subject to the general framework provided by the Statutory Powers Procedure Act (SPPA). Under the SPPA, tribunals are allowed to establish their own rules of practice and to control the process.

Finally, besides the statutory powers, the powers of an administrative tribunal are also limited by the common law and the constitution. In fact, many of the most profound changes to the area of administrative law in the past decade have come from the courts’ interpretation of the common law and the constitution. The principle of procedural fairness is one illuminating example.

Therefore, to properly prosecute or defend a case before a particular tribunal requires an intimate understanding of the foregoing sources of law, as well as the rules established by the given tribunal.

Hence, appearing before an administrative properly is not “a job that anyone will do.”

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Petty Fine for Abandoning Dog Sparks Public Outrage

Posted in: "All, Animal Welfare by Admin | No Comments Wednesday, March 4, 2009

The Toronto Star reported this story today about a dog that was left in a van without food or water in freezing temperature for 19 days.

The 12-year-old miniature poodle, Michou, was left abandoned in his owner’s van at the Burlington International Airport in Vermont as his owner flew off to Quebec over the Christmas and the New Year’s holidays. The dog lost half of its body weight and was near death when he was rescued.

As heinous as the incident was, it was the punishment of the owner that sparked a public outrage. The owner was fined $100, as the police could not find evidence regarding the owner’s intent to harm the animal.

As it happens, Vermont has one of the most stringent anti-cruelty law in the U.S. Under Vermont law, a conviction of aggravated animal cruelty could lead to a fine of $7,500.00 or imprisonment up to 5 years.+

Coincidentally, March 1, 2009, marks a new era for anti-cruelty law in Ontario as the Provincial Animal Welfare Act (an act to amend the Ontario Society for the Prevention of Cruelty to Animals Act, see my January 18, 2009 blog “Ontario’s Enhanced Anti-Cruelty Law” ) takes effect. Under this new legislation, a person causing an animal to be in distress may be fined up to $60,000, or be imprisoned for up to two years, or both.

Individuals convicted of causing an animal to be in distress could also face a lifetime ban from owning, having custody of, taking care of, or living with any animals.

I welcome the new and enhanced anti-cruelty law.

If you know an animal is being abused or treated with cruelty, please call the local humane society or the police. Your call may save a life.

+ Vermont Statutes, § 352a. Aggravated cruelty to animals.

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Starting a Small Business – What You Need to Know

Posted in: "All, Business Development by Admin | No Comments Tuesday, March 3, 2009

Lately I received several inquiries with respect to setting up a small business through my “Integrated Small Business Solutions™” program. Today I’d like to share some tips about starting a small business.

First, you should be familiar with the industry. For example, opening a restaurant is not just about cooking food. You will need to be able to manage the suppliers, customers, staff, municipal zoning by-laws, fire code, health department regulations, and so on.

Although you can hire a lawyer to take care of your legal affairs (such as the zoning by-laws), at the end of the day you remain the decision-maker. You need to know enough about your industry to make informed choices.

Second, you should find out whether you have enough capital to sustain the business through its infancy. Most businesses lose money during the first few years.

One big advantage for start-up businesses right now is that interest rates are very low at the moment, as the Bank of Canada has slashed the overnight rate to 0.5% this morning. That being said, would-be business owners should consider whether the business will remain viable when the interest rate inevitably rises.

Third, you should be prepared to face a certain degree of risk. Not all businesses succeed; in fact, most small businesses don’t survive beyond their infancy. If you don’t think you can manage a volatile income in the first few years, entrepreneurship is probably not for you.

If you think you’ve got what it takes to start up your small business, give me a call at 416-433-5531 and let’s get started!

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