Our Take on Things

A “hot topic” of conversation in the GTA Litigation community is the delay in the Toronto Court System. That delay means over 7 months to book a procedural motion before a Master and that of course can lead to delays in law suits for years.

Yesterday I was in Motions Scheduling Court in Toronto as I have been a fair bit of late, responding to matters brought by lawyers who feel it is best for their clients to dive into the delay pit of the Toronto Courts.

The entire purpose of this Court is to set dates to argue motions before a Judge. Only gowned lawyers and self represented litigants are allowed to attend this Court.

The Notice sent out by the Court says that it starts at 9:00 a.m. That is a lie. The doors to the Court Room open at 9:00 a.m., the Judge is expected to enter at 9:30 a.m. (ours entered at 10:10 a.m. yesterday, but that is not the norm). I understand the reason for the notice including a 1/2 hour “lead time” is because lawyers were showing up late for the 9:30 a.m. start.

Well, guess what? They still are because, “shockingly”, after a lawyer sits in Court for 1/2 an hour waiting for Court to start (which incurs more legal fees for the client) they learn they don’t have to be there at 9:00 a.m..

As I sat in Court at 9:30 a.m. waiting for the Judge to arrive, I did a rough calculation of the collective hourly rate sitting in the Court Room – it was around $ 10 000.00, give or take.

When the Judge arrived there was no clear reason for the Order matters were taken. A contentious schedule was argued early on, while one lawyer had to wait four hours to tell the Judge the matter settled the day before – wow, that was a fantastic use of resources.

I had to sit in Court five hours to argue against the adjournment the opposing lawyer was seeking. During that time, many matters that counsel had agreed to dates on were spoken to, but the Judge had to hand write an endorsement for each one – that takes time.

That was an incredibly inefficient day.

If I ran the Toronto System, here is how I would fix the Judges Motion Scheduling system:

1. provide a form for counsel to fax in a consent date and timetable;
2. provide a form for counsel to fax in and advise the Court a matter is settled;
3. have counsel schedule contested motion in telephone conference calls with a Judge – these can be scheduled for 20 minute time slots, thus avoiding the wasting of waiting time.
4. Alternatively, limit the number of contested matters argued before a Judge to 5 on a given day – this will limit the time in Court to schedule a matter to 3 hours at most.

Of course, I don’t run the system and I don’t expect anyone to act on my suggestions: there is simply no interest in fixing the problem that is Toronto.

Inga B. Andriessen JD

This morning the lawyers in our firm attended a great continuing legal education seminar about Civil Litigation in the Milton Court House. This was fantastic as it provided real information about our area of practice.

Unfortunately, meaningful seminars are difficult to find, particularly as we become more senior members of the Bar.

The Law Society of Upper Canada requires that every lawyer and paralegal complete 12 hours of continuing professional development (cpd) each year; however, there is no requirement that it be relevant to your area of practice.

This means that lawyers and paralegals can comply by taking courses completely irrelevant to their area of practice. Courses generally cost money: there used to be free ones but the Law Society is now charging $ 25.00 for these courses. Therefore, in the absence of making the cpd relevant to one’s area of practice, I submit, this is simply a tax on lawyers.

Let me be clear: I have no objection to relevant cpd and enjoy taking cpd that is relevant to my area of law and paying for it. What I do object to is the Law Society not actually making the cpd requirement relevant: it’s been mocked by the profession and that helps no one.

Inga B. Andriessen JD

I enjoy reading many Newspapers, each coming at the news from a different view point. Some have a clear agenda, some hide it better than others.

This morning’s Toronto Star contains an article that reads a little bit like a Law Student’s first attempt at a factum (argument of law). This is not to mock Law Students, it is to say, one’s first attempt at a factum is often not one’s best work.

The Star reported on a decision by the Honourable Mr. Justice Durno in the Via Rail Terror trial regarding a publication ban on evidence. The Star’s reporters argue that the decision to release evidence in that case means the decision not to release evidence in the case they hope shows the mayor has links to drugs in the City is wrong.

That’s not how it works. Each case is decided based on the application of the law to the facts before it. If one side believes a decision is wrong, they can appeal it. The higher Court decision is binding on the Courts below it BUT decisions can be distinguished from each other by the facts in each case.

This is how the common law has evolved for centuries and will likely continue on for many more years to come.

We don’t decide law in the media. We don’t decide law by innuendo and rumour. The Law is decided by the application of precedent to specific facts. Yes, sometimes the Law is not perfect, but it is constantly evolving and that is what makes it interesting.

Inga B. Andriessen JD

One of the things I love about owning our firm is that I can make the rules. One of the rules I have always followed is that we must have fun, at least once a year. (I’m kidding about the frequency)

To that end, every year we have a Summer Fun Day. We choose an activity that has some component of a competition to it – winner(s) get their name(s) on the plaque in our office.

This year we made our way to Niagara on the Lake (which is actually a mile in from the lake …. something we learned while there) for a wine tasting bicycle tour through Zoom Leisure.

The weather cooperated with warm temperatures and cloud cover from the blazing sun and we enjoyed tasting wine at Reif, Marynissen and Jackson Triggs.

Paul & Elisabeth won the blind tasting competition at Reif – I won’t suggest why they’re so good at tasting wine.

So, fun for the year is in the books – no more fun until next summer !

Inga B. Andriessen JD

The big topic of conversation this morning in the GTA news was that three Firepersons (you’ll understand why I’m being extra gender neutral shortly) were terminated from their employment by the City of Toronto for tweets sent from their private Twitter accounts.

These tweets included excerpts from shows such as SouthPark (you killed Kenny, you bastards!) and The Office. The tweets all referenced the superiority of men over women, of course, given the shows from which they were taken, in truth they were sarcastic and actually showed how ridiculous the statements were.

I have not seen the City of Toronto’s code of conduct for its’ employees. If it requires that all private correspondence being hyper politically correct, then they are correct to terminate the employees violated the policy.

Does your business have a Social Media policy? If you don’t, how do your staff know what you expect of them. If you want to be able to fire people for comments they make on personal accounts on their own free time, you need to be clear on this, or you will lose in Court.

It’s the Twitter Age – everything you tweet will be held against you, even if it is funny and sarcastic.

Inga B. Andriessen JD

Decisions made in anger are rarely the correct decision, yet we often find ourselves talking to clients who have decided to start a law suit in a fit of anger. While ultimately the law suit may have merit, we always talk the client through the potential pitfalls of litigation.

The issues every business needs to consider before litigating include:

1. What are the legal fees likely to be? Yes, when you win, the Court will award between 60 and 100% of the fees back to you, but what is that initial out of pocket expense going to be and can it be staggered over time?

2. Does the defendant have the ability to pay a judgment/your legal fees? We always search for property, credit status and other judgments before we start litigation – I tell our clients, it’s not a good outcome if our firm is the only one that makes money on a lawsuit.

3. Who will the corporate witnesses be and can you afford to have them take time from their positions to be witnesses? A lawsuit can require employees be cross examined or examined for discovery before a hearing and then of course, attend at trial. All of this can take time away from productivity at the office and it is something to consider before charging ahead.

4. Are the corporate witnesses still employed by your company? Tracking down employees who are no longer with your company costs more money and ultimately makes them less predictable in many circumstances.

5. Do you have documents to support your position? Papering transactions makes lawsuits a lot smoother as there is a written history to reflect on. While verbal contracts can also be enforced, it is more complicated and that generally means more expensive.

Generally, if there are good reasons to sue, those reasons will reveal themselves without anger fueling the process and the outcome will be a good one.

However, don’t just sue in anger and avoid lawyers who fan the flames of anger as lawyers need to be coolheaded to do their job, not just an ember in the fire.

Inga B. Andriessen JD

Yes, I know technically summer does not end until September 21. However, I’m just back from two weeks vacation in Nova Scotia & New Brunswick, so I’m feeling that my summer is at an end and my focus is shifting to the upcoming Fall.

Many of our clients shift their focus when the calendar shifts to September – it’s just natural, things that were not urgent in July, now are. Projects that were put off to allow for camping, golfing & cottaging are now more pressing: it’s time to get back to work.

Review your receivables listing – if anyone is past due, it’s time to use 30-60-90-Sue tm .

If you have a shareholder in your company that you’re not married to, do you have a shareholder’s agreement? If not, it’s time to get moving on that important document.

What about your Will? Everyone is going to die. Everyone needs a Will. You will not die because you have a Will. (Seriously, you won’t believe how many people think that will happen). If you have a Will, does it need to be updated, or do you want to wait until after Thanksgiving Dinner to determine who stays in the Will and who is out?

These are just a few things to think about from a legal point of view and your specific business may have many others that you should contact your lawyer to discuss.

It’s time to get back to business people: Q4 is looming !

Inga B. Andriessen JD

Poor Lance Armstrong. How a decade can change everything.

At the height of his fame, he was accused by Britain’s The Sunday Times of taking performance-enhancing drugs. The usual libel lawsuit was commenced by Armstrong and in 2006 the paper paid him about a half million dollars to settle. The anonymous sources clearly did not want to come forward to testify for the paper. Seeing the writing on the wall, the paper no doubt realized that it did not have enough evidence to come out on the right side of a trial. So it settled. Good move.

Jump forward 7 years. Armstrong confesses to the doping allegations and loses his Tour de France titles after his teammates confirm he led their doping program. Everything in his empire collapsed like a house of cards.

Justifiably, the paper sued not only to get back its settlement payment but also sued for an additional million in damages. According to the National Post (http://sports.nationalpost.com/2013/08/25/lance-armstrong-settles-1-63m-case-after-newspaper-sues-to-reclaim-libel/), that lawsuit has now settled. The terms of settlement were agreed to be confidential. Darn.

I’m hazarding a guess that Lance had to do more than just say sorry.

Paul H. Voorn
Andriessen & Associates

I listen to talk radio on my morning drive in to work. The format is such that often an easy topic is discussed that will result in heated call-ins, with the predictable extremes of opinion being expressed. That may be the reason why I am straying as of late to the AM 820 comedy station for a change of pace.

Recent topics on the AM talk radio channels have been the unfortunate Sammy Yatim shooting and the suspension of Alex Rodrigues of the Yankees for his (alleged) blood doping transgressions.

What strikes me as disturbing when topics such as these come up is the “hang ‘em high” vigilante views that always make their way onto the airwaves. Guilt is presumed, evidence gathering and proper investigations are for fools, proceed to conviction and punishment and rights of appeal are an abuse. I am also seeing this in the comments sections of online newspapers.

There will be the usual trolls who express extreme views on guilt just to agitate. But there are those who genuinely believe that due process is a waste of time and designed solely to line the pockets of lawyers and judges. And it is those latter individuals who frustrate me. They are the ones who often refer to Shakespeare’s reference in Henry VI to “kill all of the lawyers” as they justify their position (not understanding, of course, that the reference is actually what to do first if planning a political coup – that is, eliminate the rule of law).

We need not look hard in this world for examples were the rule of law is non-existent. Syria, Afghanistan, Somalia. How many of us would pack up the family and move there? None. Yet, the idea of disregarding due process in the law gains a foothold here in North America, as if our rights as citizens should be at the whim of a dictator. For any breach of the law (civil or criminal), investigations must be conducted, the evidence gathered, matters are settled and a trial held if they are not with a verdict rendered as appropriate. Appeals are heard and judged on their merits.

It is not a perfect system (and the expansion of the domain of Human Rights Tribunals is a good example of an area that desperately needs reform). But the rule of law remains in place. It protects our freedoms and allows us to claim our just debts – remove it and we have anarchy.

Paul H. Voorn

August – what a great month. The weather is warm, the nights come a bit earlier than in July, so campfires start sooner and of course all the back to school ads rev up.

From a business perspective, August is a good month to take a look at the upcoming last quarter of the year and plan accordingly. At our firm that means planning our upcoming schedule of free Lunch & Learns for our clients, scheduling motions, trials and cross-examinations so they don’t all collide with the “November Sittings” in the Milton Courthouse.

Jumping beyond Fall and even the next year – what is your business doing about planning for the future?

If you are a sole proprietor, what is your “exit strategy” for retirement? Even if you’re a young business person, you need to plan your exit, failing to plan is planning to fail.

Regardless of age, what is your plan for your business, or your ownership stake in the business you are shareholder in, when you die? Failing to plan for your death (but to be clear, you do not actually die as soon as you sign a Will, yes, we’ve had clients come into the firm believing you do) is planning to leave your loved ones mad at you as they wade through a myriad of complicated issues they never expected to have to address, rather than mourn your passing.

Without a Will, your Estate likely will cost more in fees to finalize, thereby leaving less money to your loved ones – you don’t want to do that. If you own a business you likely should have two Wills – one for your Corporate Assets and one for your other Assets – this reduces the Estate Fees significantly when you pass away. This also allows you to select an Executor for the Corporate Will who understands the business and is able to carry out your instructions with confidence.

Moving away from the “end of life” theme – August is a good time to review your Employee Handbook to ensure it is up to date with all Government required policies. If the Handbook is not up to date, it is also a good time to plan the implementation of the policies and create a legal budget to get your company compliant before the end of the year.

Take some time this last month of the summer (yes I know it technically ends in September) and enjoy planning for the future. If the answer isn’t in the stars, gazing up at the starry nights around a campfire certainly helps clear your mind to find the answers.

Inga B. Andriessen JD