Q: How many lawyers does it take to change a light bulb?
A: Whereas the party of the first part, also known as “Lawyer”, and the party of the second part, also known as “Light Bulb”, do hereby and forthwith agree to a transaction wherein the party of the second part (Light Bulb) shall be removed from the current position as a result of failure to perform previously agreed upon duties, i.e. the lighting, elucidation, and otherwise illumination of the area ranging from the front (north) door, through the entryway, terminating at an area just inside the primary living area, demarcated by the beginning of the carpet, any spillover illumination being at the option of the party of the second part (Light Bulb) and not required by the aforementioned agreement between the parties.
The aforementioned removal transaction shall include, but not be limited to, the following steps:
1. The party of the first part (Lawyer) shall, with or without elevation at his option, by means of a chair, step stool, ladder or any other means of elevation, grasp the party of the second part (Light Bulb) and rotate the party of the second part (Light Bulb) in a counter-clockwise direction, this point being non-negotiable.
2. Upon reaching a point where the party of the second part (Light Bulb) becomes separated from the party of the third part (“Receptacle”), the party of the first part (Lawyer) shall have the option of disposing of the party of the second part (Light Bulb) in a manner consistent with all applicable provincial, local and federal statutes.
3. Once separation and disposal have been achieved, the party of the first part (Lawyer) shall have the option of beginning installation of the party of the fourth part (“New Light Bulb”). This installation shall occur in a manner consistent with the reverse of the procedures described in step one of this self-same document, being careful to note that the rotation should occur in a clockwise direction, this point also being non-negotiable.
Note: The above described steps may be performed, at the option of the party of the first part (Lawyer), by any or all persons authorized by him, the objective being to produce the most possible revenue for the party of the fifth part, also known as “Partnership.”
A recent decision by the Supreme Court of British Columbia in relation to a costs application provides a cautionary tale for eager plaintiffs that hope to use the courtroom to wage their own private war on citizens exercising their right to free speech. In Scory v. Krannitz, 2011 BCSC 1344 , Bruce J. awarded special costs and double costs against a trigger-happy plaintiff that sued an environmental society and some of its members individually for merely speaking out against his application for a permit, even though his application had not yet been denied by the relevant municipality.
Although Bruce J. was hesitant to characterize the plaintiff’s actions as a SLAPP, her decision reflects the courts’ capacity to appropriately address meritless litigation that abuses the court system and harasses citizens exercising their lawful right to free speech. After acknowledging that free speech is essential to democracy, Bruce J. stated that special costs can be used as a “deterrent to litigants whose purpose is to interfere with the democratic process.” In comparison, the courts have traditionally been reluctant to use the existing tools at their disposal (e.g. the Rules of Civil Procedure) to deal with plaintiffs that commence SLAPP actions on the basis that such an application of those tools would be unprecedented or outside the purpose that the legislature intended for them. Given the provincial legislatures’ slow pace in developing anti-SLAPP legislation, it is necessary for judges to use the tools at their disposal to compensate the legislative vacuum. Read more
In response to last week’s post on the report of the Advisory Panel to the Attorney General on strategic litigation against public participation (SLAPP), one relevant case was brought to my attention. On July 20, the Superior Court of Justice released its newsworthy decision in Morris v. Johnson, 2011 ONSC 3996 (CanLII). As many of you may recall, the ire of many bloggers was incited by the plaintiff’s motion for an order requiring bloggers to disclose the identity information of anonymous defendants who had allegedly defamed her through their comments on a blog. The plaintiff was a former mayor of Aurora and the allegedly defamatory comments were made in relation to her re-election campaign After applying the three factors established in Warman v. Fournier, 2010 ONSC 2126 (CanLII), Brown J. ultimately denied this motion.
For those of you that have not read the decision, the motion reflected many of the qualities of a SLAPP. As indicated in the decision, the plaintiff’s motion was without substantial merit. For example, the plaintiff did not set out the allegedly defamatory words in her statement of claim, despite being an element of the tort. The court noted that she could have obtained the verbatim defamatory statements through the impugned blog. The claim did not appear to have been brought in good faith since the identities of the anonymous bloggers may have been revealed during documentary discovery or examination for discovery yet the plaintiff did not employ those procedural steps. Like many SLAPPs, the claim was brought against individuals exercising their right to freedom of speech in relation to a political event. Notwithstanding the plaintiff’s failure in the courtroom, the SLAPP has achieved its ulterior purpose: the chilling effect on free speech by bloggers who, despite the court’s denial of the motion, may be hesitant to publicize their opinions in fear of being sued. Even after the determination of this motion, its SLAPP-like effect is ongoing with the plaintiff’s application for leave to appeal at the Ontario Court of Appeal, which is anticipated to be heard next week. Read more
The title says it all. SF Weekly:
A Northern California woman is suing Pipedream Products, which manufactures sex toys, claiming her experience with her dildo was anything but pleasurable. According to the claim filed in Yreka, April Bonjour and her boyfriend were getting frisky and decided to bring out the dildo for some foreplay. But while the two were getting it on, something started to feel not quite right, according to Bonjour.
You can read the pleadings here.
Given the backdrop of the G20 in Toronto, this is worth sharing:
To Chief Bill Blair and the Toronto Police Service:
In June, 2010 at the G20 summit Toronto saw the largest mass arrests in Canadian history. Complaints too numerous to mention were filed against police officers and many of the investigations and law suits that resulted from that weekend will be ongoing for years to come. On October 15 another mass demonstration is coming to Toronto as part of the Occupy Everywhere movement. Neither the people of Toronto, nor I’m sure, its police force want to see a repeat of the G20 weekend.
We, the undersigned, expect that officers will be professional, will attempt to communicate with demonstrators at all times, will make any requests or demands clear and will give citizens including demonstrators, passers by, observers and the media every opportunity to comply with those requests before taking any action.
All officers should have their badges visible at all times, be prepared to produce identification and/or provide a business card on request.
If there is violence it should not, under any circumstances, be instigated by the police and in the event it is necessary the minimum possible force should be used. Under no circumstances should police resort to the use of tear gas, pepper spray, tazers, rubber bullets, sound cannons or any other device, substance or method that may harm individuals other than the intended target.
Individuals should neither be arrested nor detained unless there is an intent on the part of the police to charge them with a crime.
Individuals should not be kettled or impeded in any way unless there is a belief on the part of police that they were involved in a crime or are about to commit a crime.
Police should prioritize their concerns and take a realistic view of potential security threats so that this isn’t a repeat of the “Officer Bubbles” incident.
Police should not, under any circumstances, threaten, harass or impede medical volunteers attempting to treat the injured.
All individuals, including those who have been detained and arrested, should be treated with courtesy, dignity and respect. This includes insuring that their human and civil rights are observed, that they have access to legal counsel and adequate food, water, sanitation and medical attention if necessary.
Above all individual officers should be prepared to be held accountable for their actions. Toronto, Canada and the world will be watching. The demonstrations will be heavily photographed, recorded to video and otherwise documented. “Following orders” will not be acceptable justification for the mistreatment of individuals.
Canada is a democratic country and its citizens are gathering, in solidarity with individuals around the world, to demand reform. They have every right to do so. It is the responsibility of the Toronto Police Service to insure the safety of citizens, insure that individual rights are upheld and that property is protected, not to act as political agents on behalf of the current government. Many of the reforms being sought would, ultimately, be of benefit to police officers and their families. Perhaps, if the Occupy Toronto actions go well, the rift between Toronto and its police that opened as a result of the 2010 G20 meeting can begin to heal.
October 28th of this month will mark the one year anniversary of the publication of the Anti-SLAPP Panel’s Report to the Attorney General on anti-SLAPP legislation. Since then, the chatter on the issue of strategic litigation against public participation (SLAPP) appears to have died down. With the intent of renewing the debate on this issue, the following article, although long overdue, will summarize and discuss the Advisory Panel’s report. It is hoped that the new provincial government will address the issue of SLAPPs during its four year term.
In June 2010 the Attorney General of Ontario created the Advisory Panel to advise him on potential anti-SLAPP legislation. Arguably, this move was in response to what has been described as the “most down-and-dirty development fight in Ontario’s recent memory”. After gaining approval from the Ontario Municipal Board (OMB) to build a resort and marina on the shores of Big Bay Point, a developer made a costs application for $3.2 million against a community group and its lawyers that had opposed its plans. Although the OMB declined to award the developer its costs, the latter did not come away from the proceedings empty-handed. The notion of suing the lawyers of defendants to a SLAPP lawsuit sent shockwaves throughout the Ontario legal community. While the Advisory Panel was still in the process of developing its recommendations the insurer for Ontario lawyers warned its members that representing public interest groups was risky because those groups may become the target of a SLAPP lawsuit that involves great unanticipated cost consequences.
Having reached that critical point, it was not a great surprise that the final report released by Advisory Panel to the public in December 2010 recommended that anti-SLAPP legislation should be created. Instead of endorsing the creation of new statutory rights to public participation and to “SLAPPback,” the Advisory Panel opted for a procedure-based approach for filtering out SLAPP lawsuits and made recommendations on the different types of provisions that should be included in the legislation. Read more
There is an articling crisis in Ontario. Many students enticed to law schools by the prospect of being a lawyer, can’t overcome the final hurdle because they can’t find an articling job. Ten months of working for an experienced lawyer is a prerequisite to joining the legal profession, in addition to a law degree, the bar exams, and a “good character.” But most lawyers don’t want to hire articling students despite cajoling from the Law Society. They probably have a good reason. Supervising an articling student is expensive: it costs a lot in salary (though often still meager), liability, time, and office space. I propose that students pay for their own articling instead of paying for the third year of law school.
First, articling is training, often far more useful than law school. We are used to paying for training, and teachers generally expect compensation. Articling students usually don’t compensate lawyers who supervise them, but lawyers make up for it by working articling students to death. This is not true for all articling principals, but articling has a reputation for long hours. Reverse the flow of money between articling students and principals, and the relationship between them will become healthier.
Second, the third year of law school is nothing special, and many law students don’t need it. Second and third year students take courses from the same pool. Some of these courses are purely academic, and students who want to be lawyers don’t need them. After all, a general undergraduate liberal arts education should be a pre-requisite for law school admission so valuable lawyer training time is not wasted on academic subjects. Students who do not wish to be lawyers (for example, students who want to be law professors) should be able to take a third year of law school.
Third, replacing the third year of law school with an articling year will shorten the path to becoming a lawyer by exactly one year. The cost of training a lawyer to the public will be less because the less time it takes to train a lawyer, the less subsidies, grants, tax breaks, and other forms of government assistance will be required.
Fourth, it will not cost anything extra to law students because they would have paid for that year to law schools anyway. Now they will pay to the Law Society that will compensate selected lawyers. Lawyers will no doubt compete for articling principal gigs since they will make money instead of losing it. The quality of articling principals will also probably increase because their pool will widen and the Law Society will have the money to select better ones.
Fifth, the law firms who wish to snatch the “best” (whatever that means) articling students will have another form of incentive to offer in addition to higher salaries—reimbursement of articling tuition charged by the Law Society.
Sixth, the profession will get more control over lawyer training and more actual lawyers will teach future lawyers how to practice law.
Seventh, articling students will be less vulnerable as they will be paying for articling principals’ services instead of serving articling principals in exchange for wages. The Law Society will also have a greater control of working conditions and the nature of training.
Eighth, articling students will be exposed to a far broader rager of lawyers. Many fascinating lawyers doing amazing work for their clients and for the public never hire students because of the cost. If these lawyers get paid for hiring a student, more of them will probably do.
Ninth, law students who want nothing to do with law practice will have a chance to identify themselves and get better attention from law schools. Law students who do want to be lawyers will work in real lawyers’ offices instead of competing for scarce legal clinic spots in law school.
Tenth, Ontario will finally have more articling jobs, which is at the heart of the articling crisis in this province.
Pulat Yunusov is a Toronto litigation lawyer.
I often talk to friends or strangers about law. I remember a debate I had with someone once about the government. Can it make arbitrary decisions? I said yes, and he said, rather indignantly, no. His logic was that arbitrary means capricious with a tinge of tyranny. Doesn’t our democratic government respect the rule of law and make decisions based on reason?
But in law, arbitrary simply means unconnected to any legitimate objective. This is what my friend had a difficulty with: that government, even with a democratic mandate, doesn’t have complete discretion. And last Friday, the Supreme Court of Canada issued a ruling that criticized the federal government for one such arbitrary decision: not renewing an exemption from criminal drug laws for the Insite safe injection facility in Vancouver.
Insite, suported by the province of British Columbia and the city of Vancouver, gives drug addicts a clean and safe place to inject under medical supervision. They would inject anyway, out on the street, probably with a used needle and in public. Addiction is a disease. You know when the Chief Justice’s reasons begin with a description of drug addicts drawing water from puddles to inject heroin, she is going to have a strong opinion about the government’s decision to block Insite.
The courts have held that there are only two goals in the Controlled Drugs and Substances Act (CDSA), a federal law that makes using drugs a crime: public safety and public health. Any government decision under this law that doesn’t serve either of these goals is arbitrary. For example, using the CDSA to promote marriage is arbitrary. A famous example of an arbitrary government decision was revoking Frank Roncarelli’s liquor license because he gave money to Jehovah’s Witnesses.
In the years of litigating the Insite case from trial to the Supreme Court, government’s lawyers failed to prove any harm to either public safety or heath from Insite. But the benefits to at least public health and quite probably to public safety are obvious.
The CDSA gives the federal Minister of Health the power to exempt from criminal liability. Using this power without a connection to either public health or public safety is arbitrary. There is no absolute discretion for the government.
Insite originally got the exception from drug laws so doctors and nurses wouldn’t be arrested for ensuring addicts don’t kill themselves. The federal government used its power under the CDSA to deny that exception out of the blue despite the evidence of Insite’s benefits for both purposes of the CDSA. That’s arbitrary.
Of course, we know that governments don’t usually waste their powers on random choices that have no purpose. Government decisions often serve political constituencies. In the Supreme Court, federal government lawyers failed to give one good reason to counter expert reports and other evidence that Insite was beneficial for public health and safety—two purposes of the CDSA. But one argument government lawyers made is illuminating: addicts shouldn’t get an exemption because its their own fault they are addicts. Is this a hint at the real reason for trying to block Insite: the same reason why, in the past, some governments tried to block HIV research funding and abortion services?
Pulat Yunusov is a Toronto litigation lawyer.