Monthly Archives: May 2009

Malicious Prosecution

Posted in: "All, Legalese Dictionary by Admin | No Comments Wednesday, May 27, 2009

In Canada the term “malicious prosecution” refers to a tort (civil wrong) against the Crown attorney for improperly initiating or proceeding with criminal prosecution.*

The word “malicious” is quite misleading here. It does not denote spite on the part of the prosecutor; rather it refers to an improper purpose or a claim without merit. For example, if a crown attorney is bull-headed in pursuing a case even if there’s credible evidence suggesting otherwise, he or she may be liable in a civil court for the tort of malicious prosecution.

Since the first case involving malicious prosecution was decided by the Supreme Court of Canada in Nelles v. Ontario+ two decades ago, there has been few cases of such nature by appellate courts, until now. The case Miazga v. Kvello Estate.^ from the Saskatchewan Court of Appeal, is currently before the Supreme Court of Canada.

The case involves the prosecution of several foster parents on allegations of serious sexual abuse in the early 1990′s. The Crown attorney, Maththew Miazga, advised the police to lay charges against the foster parents if they thought the accused were guilty. Miazga was accused of adopting very aggressive tactics during the trial.

Years after the criminal proceeding, the former accused sued Miazga (among others) for damages as a result of the unwarranted claims. At trial, the plaintiffs were successful. However, the appeal by one of the defendants was unaminously allowed, while the Miazga’s was dismissed setting the scene for the current case before the Supreme Court of Canada.

Nine attorneys general and the Canadian Association of Crown Counsels have intervened in support of the appellant, Miazga, while the Criminal Lawyers Association (Ontario) (CLA), the Canadian Civil Liberties Association, and the Association in Defence of the Wrongly Convicted have intervened for the respondents (the original plaintiffs).

In a recent article** by Sean Dewart, counsel for the CLA, he indicates that the CLA‘s position is to apply well-established principles of criminal law to the case, namely that “the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.”++

What new developments the wise men and women on the panel will bring to us remain to be seen.

*While the tort of malicious prosecution is largely found to originate from criminal proceedings, this is not exclusively the case. For example, it may be applied to disciplinary hearings. See e.g. Griffin v. Summerside (City of (2006), 768 A.P.R. 88.

+[1989] 2 S.C.R. 170

^ Docket 32208 (Judgment Reserved)

**Sean Dewart, “Supreme Court Pondering Malicious Prosecution, Again” For the Defence 30:2  24.

++ R. v. Boucher, [1955] S.C.R. 16

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Mediated Agreements

Posted in: "All, Administrative Law, Family Law, Legalese Dictionary by Admin | No Comments Tuesday, May 26, 2009

Most courts and other quasi-judicial bodies encourage parties to settle. For example, case conferences and settlement conferences are mandatory under both the Family Law Rules and the Rules of Civil Procedure. They are designed to help the parties screen out non-contentious issues and expedite the proceedings.

Other quasi-judicial bodies, including the Landlord and Tenant Board and the Ontario Human Rights Tribunal, have professionally trained mediators available on site to facilitate the reaching of settlements.

Are these mediated agreement legally binding?

Mediated agreements are essentially contracts. So long as the agreement in question is valid according to the law of contracts, it’s binding.

This raises the question of how a settlement may be enforced, given that it’s no more than a private contract between the parties.

One way to make the settlement enforceable is to incorporate the terms of the agreement into an order (generally on consent).  Once the order is issued by the court, it becomes enforceable by the sheriff. This is often seen in family law cases, especially when custody and access are involved.

In certain cases it may be desirable to draft the agreement so that it contains self-enforcement provisions, e.g. the agreement becomes valid upon the defendant’s payment to the plaintiff. This kind of agreement is often seen in civil proceedings, where the main dispute is over amount of compensation.

Finally, certain mediated agreements are themselves enforceable by legislation. For example, agreements mediated by the Landlord and Tenant Board are binding pursuant to the Residential Tenancies Act. If a board-mediated agreement is breached by one party, the other may apply to the Board for relief without notice to the offending party.

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Self-Appointed Thief Catchers Charged

Posted in: "All, Business Development by Admin | No Comments Sunday, May 24, 2009

Two Chinese-language Toronto newspapers, Ming Pao and Sing Tao, reported this story on the front page today.

A store owner tried to catch a thief by himself. After the alleged perpetrator was caught, the store owner and two employees, gave the subject a beating, tied him up and locked him in a car. They probably thought it would teach the thief a lesson.

Ironically, when the police arrived, they arrested the “thief catchers” and laid charges against them, including assault, kidnapping, forciful confinement, and carrying a concealed weapon. Because the charges were serious, the accused were not released.

It’s unclear what has happened to the alleged thief/victim since the incident.

While it’s true that the Criminal Code lists circumstances in which a citizen may make an arrest without a warrant, the right to do so is strictly confined. If the arrest cannot be fully justified, the person making the arrest may face criminal prosecution and civil liabilities, just as the store owner mentioned in the news piece is doing.

Needless to say, a lay person attempting to make a citizen’s arrest also face considerable danger, as the perpetrator may be carrying weapons and/or intending to cause bodily harm.

What the store owner should have done is to consult a lawyer before deciding to chase a suspect. A lawyer (hopefully) would have explained the potential liabilities involved in apprehending a thief on his own. A lawyer also might have advised him of other less-risky alternatives, including laying private information before a justice of the peace or turning evidence over to the police. A store owner concerned about the threat of theft could also implement a loss-prevention policy and enhance the store’s security measures.

I understand that hindsight is always 20/20. However, if you are considering taking up “self-help” measures, you should consult a lawyer fist. When in doubt, call a lawyer.

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Letters of Intent

Posted in: "All, Business Development, Legalese Dictionary by Admin | No Comments Friday, May 22, 2009

A letter of intent is, in plain language, a statement of the intent of the parties to complete a transaction. It identifies key terms that will govern the parties during that period. In other words, a letter of intent sets out the parameters of a particular transaction.

Generally, a letter of intent confirms that the parties are serious about the proposed transaction and have decided to hammer out the details in the near future. Some view a letter of intent as a draft proposal, while others see it as evidence of engagement between the parties.

A letter of intent need not be in the form of an actual letter. Often, it takes the form of an executed agreement or a memorandum. Regardless of the form, a good letter of intent should include the positions of the parties, any agreed upon elements of the transactions, any terms to be negotiated in the near future, undertakings of the parties, as well as any conditions to the completion of the transaction.

Whether a letter of intent is legally binding depends largely on the wording of its contents and the surrounding circumstances.

The law in Ontario generally views a letter of intent as a non-binding record of the parties’ intention to negotiate further. However, if both parties acknowledge that all essential terms to the transaction are agreed upon at the time of signing of the letter, the letter of intent may nonetheless create a binding legal obligation for the parties to carry out the transaction as contemplated.*

Therefore, it’s a good idea to have the letter of intent drafted by a qualified lawyer to ensure that there won’t be surprises down the road.

If you require assistance, please do not hesitate to contact me at 416-433-5531.

*See e.g. Wallace v. Allen et. al. (2008), 93 O.R. (3d) 732 (C.A.)

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Tips for Better Professional Productivity

Posted in: "All, Business Development by Admin | No Comments Thursday, May 21, 2009

Today I’d like to share more tips I learned from the Solo and Small Firm Expo last week. Today’s focus is on better professional productivity.

All that we lawyers have to sell is our time. Therefore, if you can track and manage your time better, you will likely boost your productivity. The tips below may help you do just that.

1. Find your productive hours

You should figure out which hours are your most productive during the day and focus on your heavier work during those hours. Try to spend your less productive hours on less important stuff, such as tidying up your desk.

For more information on finding your productivity hours, please refer to www.productiveflourishing.com.

2. Turn off your productivity-boosting aids

Emails, the internet, and smartphones no doubt boost our productivityy. We can now work virtually anywhere, be it on the train or on a plane.

However, these handy gadgets and technologies can also distract you, particularly when you’re sitting in front of your desk trying to focus.

For example, when the “email bell” rings or when the smartphone vibrates, it interrupts your train of thought. Even if no immediate action is required for the particular message, it will take you a while to get back to the concentration level you were at.

3. Leave work with a  “to-do” list.

How many times a week do you start your day with some kind of “crisis”?

My answer is “everyday.” Everyday when I get to work there are emails to reply to, faxes to respond to, and phone calls to return. Apparently that’s not the most efficient way to start the day.

By the time all incoming messages are dealt with, you are only starting to structure your day. It takes a while to recall what needs to be done and get those tasks organized. It’s not an efficient use of time.

Instead, try leaving a to-do list for yourself before you leave work each day. After you deal with your “crisis” in the morning, you’ll know exactly what you really need to do.

4. Keep it simple, sweet, and short.

Complicated, long messages put people off, whether they are to-do lists, instructions to staff members, or online productivity-boosting blogs.

This is precisely why this post ends here.

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A Small Firm’s Edge

Posted in: "All, Business Development by Admin | No Comments Thursday, May 21, 2009

Last week I had a debate with my colleagues at the Solo and Small Firm Expo about this question: What makes a small firm competitive?

Large firms no doubt have many more resources than small ones. Large firms, for instance, have better access to support staff and reference materials. They also have one sharp advantage over us small firms: they have more money. The large pool of cash available enables big firms to take on big projects that are generally out of small firms’ reach.

Given these limitations, how do small firms survive?

After a lengthy debate, my colleagues and I came to the following conclusion:

1. Small firms often offer a more flexible payment schedule.

Because small firms are owned by fewer partners, they may be able to be more flexible about when they get paid. Typically, as long as the retainer is paid in full before the completion of the file, most small firms are  agreeable to payment by instalments.

2. Small firms may be more accommodating in terms of appointments and services.

Most large firms have set office hours; lawyers in larger firms are often reluctant to meet clients outside business hours, perhaps because of security concerns. Large firms often keep valuables such as stocks, shares, jewellery, or real evidence on behalf of clients, but if there are hundreds of lawyers and staff members, it may be difficult to spot an intruder, and so access hours are restricted.

In certain very large firms, access to files may be also restricted because of concerns over conflict of interests.

On the other hand, in small firms have fewer such concerns, and the owner or partners may be agreeable to meet the clients during evenings or weekends.

3. Small firms may offer a shorter turn-around time.

Most large firms have a stable amount of work in progress and so are often unable to accommodate special “rush jobs” without charging a high premium. Lawyers in certain very large firms may not even have control over their own calendar.

In contrast, lawyers in smaller firms have more control over their schedule and the priority of files. If possible, small firms often are willing and able to shift their work around to accommodate special rush job requests.

4. Small firms are quicker to adapt productivity-boosting technologies.

It’s often easier to implement new productivity-boosting technologies in small firms because of the intimate environment. If one partner tries a piece of new software and likes it, it’s relatively easy to spread the software to the entire firm.

In large firms, however, the implementation of new technologies often has to pass several levels of committees and approvals. Some individuals may be resistant to new technologies, therefore slowing implementation down. This is especially true if they happen to be senior partners.

One fine example on this point is the implementation of speech-recognition software.

After hearing my endorsement, several friends of mine have switched to the software by abandoning dictation all together. They simply told their sectaries to devote more time on something else.

At the same time, I know of at least one big firm that is moving slowly toward digital dictation. And they’re only inching toward it after the software was brought to their attention over a year ago.

There you have it: bigger isn’t always better.

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Parallel Parenting

Posted in: "All, Family Law, Legalese Dictionary by Admin | No Comments Wednesday, May 20, 2009

“Parallel parenting” refers to a particular type of custody and access arrangement of the children after the parents have separated. In recent years, judges have been increasingly favouring this kind of arrangement, particular in high-conflict cases.

Typically, under the parallel parenting regime each parent has the ability to make day-to-day decisions when the child is with that parent, but decision-making with respect to major issues, such as the education, health care, and religion of the children, are divided. The division of decision-making power is usually very detailed, including most foreseeable contingencies.

For example, suppose one parent is responsible for all schooling decisions and the other medical ones, the detailed plan will likely contain provisions pertaining which parent gets to make the decision should the child requires medical attention while at school. The idea is that the parents have equal status but exercise the rights and responsibilities associated with custody independently.

In Ontario, parallel parenting is considered as a subcategory of joint legal custody, where both parents have (albiet mutually exclusively) decision-making powers regarding the well-being of the child.*

As the result of each parent wielding mutually exclusive, clearly-defined decision-making powers, there is little need for communication between the parents. The successful parenting under parallel parenting doesn’t depend on the cooperation or even good communication between the parents. The parents are encouraged to communicate through a communication book or emails.

Therefore, parallel parenting may be suitable in high conflict cases, where the parents have difficulties working closely with each other. In fact, parallel parenting may be the only alternative to granting the sole custody of the children to one parent when the parents are openly hostile to each other. By allowing both parents to make major decisions for the children, concerns over potential parental alienation are lessened. The children may hence have maximum contact with both parents even if the parents can’t get along.

*See e.g. M.(T.J.) v. M.(P.G.), [2002] O.J. 398

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PSWLaw Closed for Victoria Day, May 18, 2009

Posted in: "All by Admin | No Comments Sunday, May 17, 2009

Please be advised that PSWLaw will be closed on Monday May 18, 2009, for Victoria Day.

We will re-open on Tuesday, May 19, 2009.

Business Loan Fraud Alert!

Posted in: "All, Business Development by Admin | No Comments Friday, May 15, 2009

A while ago I posted an item on collection fraud “Lawyers Increasingly Targeted by Fraudsters” (February 4, 2009). Apparently, perhaps as a result of the higher diligence of lawyers, scam artists are adopting a new MO – business loan scams, targeting solicitors.

This is how the business loan scam works: (courtesy of LAWPRO, Lawyers’ Professional Indemnity Company)

Recently a previously unknown client and asks the targeted firm incorporate a company. The client then asks the firm to arrange a business loan from a private lender for the newly incorporated company, typically in the range of $250,000 to $450,000). The loan proceeds are to go to a third-party corporation (often a  numbered company) and not the client’s new corporation.

By now you’ve probably guessed the rest. The firm receives a forged but authentic-looking certified cheque or bank draft. After depositing the forged document in the trust account, the clients pressures the firm into disbursing the funds before they’re cleared through the bank. After receiving the funds, the client disappears, leaving the firm with a shortfall in the trust account.

According to LAWPRO, the business loan frauds have some common traits:

  • The client pays cash for the initial incorporation.
  • The address of client and the corporation is the same.
  • The corporation is without a particular purpose but requires for a substantial start-up loan.
  • The only security is a GSA (general security agreement) or a promissory note.
  • The client’s home or work number is not working, or the client’s only contact is through a cell phone.
  • The client’s address is not real.
  • The client pressures the firm to disburse the funds before they can be cleared through the bank.

The best way to avoid becoming a victim is to hold the funds until they’re cleared through a bank-to-bank verification. The fraudster invariably attempts to pressure the firm into disbursing the funds earlier than the protocol. Remember, once the money is gone, it’s gone.

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Insurance Beneficiary v. The Second Wife

Posted in: "All, Family Law by Admin | No Comments Thursday, May 14, 2009

Most people leave significant assets to their spouse in their will. But what if there’s a falling out and the marriage ends in divorce?

In Ontario, certain parts of a will becomes null after a divorce is granted. Particularly,  clauses pertaining to the following items are considered revoked, unless contrary intention by the testator appears by the will:+

  1. a devise or bequest of a beneficial interest in property
  2. an appointment of the former spouse as executor or trustee
  3. the conferring of a general or special power of appointment on the former spouse,

Accordingly, a person need not be worried about assets falling into the hands of the former spouse if he or she should die the moment after the divorce is granted.

What about insurance proceeds?

In law, insurance policies are governed by the Insurance Act, and proceeds of an insurance policy are not considered part of the estate. The Insurance Act provides that an insured person may from time to time alter or revoke the designated beneficiary by a declaration.*

Consequently, the application of the Succession Law Reform Act and the Insurance Act often leads to the unfortunate situation where the testator has not revoked the designation before his or her death, and the proceeds of the insurance policy fall into  the hands of a former spouse.

In a recent case^ decided by the Ontario Superior Court, this is exactly what happened. The deceased divorced his first wife in the early 1990′s and appointed his second wife as the trustee and beneficiary of the estate. However, he did not revoke the designation of his first wife as insurance beneficiary. The estate tried to contest the validity of the insurance designation and sought to include the proceeds from the insurance policy as part of the estate.

Alas for the estate trustee (the second wife), the court ruled that the declaration of a beneficiary in a life insurance policy is normally unassailable. The designation of a former spouse as a beneficiary indeed survives a divorce. Without a valid declaration to vary the beneficiary designation, the first wife was entitled to the insurance policy proceeds, which did not form part of the estate.

+Succession Law Reform Act, R.S.O. 1990, c. S.26, s.17

*Insurance Act, R.S.O. 1990, C. I. 18, s. 190(2)

^Richardson (Estate Trustee of) v. Mew (2008), 93 O.R. 3d 537

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