A proposal to resolve the articling crisis

By: Pulat Yunusov · October 3, 2011 · Filed Under Law School · 4 Comments 

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.

 


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Safe injection facilities and arbitrary government decisions

By: Pulat Yunusov · October 3, 2011 · Filed Under Criminal Law · Comments Off 

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.

 


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The death of Troy Davis

By: Pulat Yunusov · September 29, 2011 · Filed Under Criminal Law · Comments Off 

On September 21, 2011, at 11:08 pm Eastern Daylight Time, Troy Anthony Davis was declared dead.

Cause of death: lethal injection. Administered by: employees of the state of Georgia. Legal justification of homicide: a court order. Grounds for the court order: Troy Anthony Davis’s murder conviction.

Societies punish crimes for specific reasons. Section 718 of the Canadian Criminal Code is a good summary of purposes of criminal sentencing:

(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Death penalty doesn’t rehabilitate or deter the offender, doesn’t compensate anyone, and doesn’t make the very dead offender feel any responsibility for or acknowledge anything. It should be pretty clear by now that it doesn’t deter others too. It does separate the offender from society, so to speak, but usually prisons do that job perfectly.

But denounce, it does.

So the only true reason for death penalty is denunciation. All other reasons either do not exist or do not require death penalty. Societies, at least rational societies, kill only to denounce, to show contempt for the crime, to assign a special measure of gravity to the illegal act. There is no other reason. The only reason for death penalty is really a symbol.

No doubt, denunciation can be a valid reason. But let’s see what price we pay for denouncing by death.

You can look up Troy Davis yourself and find out that his conviction was based on eye-witness testimony much of which was later recanted. I probably don’t need to explain why this creates a possibility that he was innocent. This possibility is also called reasonable doubt. And the supreme value of our society is preservation of innocent life. You would think the courts would choose the chance and the possibility of preserving innocent life over a chance to denounce murder. After all, no one would think more kindly of murder if Troy Davis got a life sentence or if he was released based on reasonable doubt in his guilt. And there is another value the courts would have protected if they spared Davis’s life: fairness. The more opportunities an accused person has to clear his name, the more fair our legal system is.

But the courts chose a different value over all the others: finality. Its purpose is to unclog our court system and to give litigants some sort of confidence that their case is not going to be reopened. This value is very important in civil litigation: hence, limitation periods, res judicata, etc.

In criminal law, finality serves victims and their families and the public purse to some extent. It doesn’t usually serve the accused, and it certainly didn’t serve Troy Davis.

The courts chose finality for the victim’s families and the public purse over fairness to Davis and preservation of his potentially innocent life. You decide if it was the right choice.

Pulat Yunusov is a Toronto litigation lawyer.

 


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Ethical walls and conflicts of interest

By: Pulat Yunusov · September 28, 2011 · Filed Under Family Law · 1 Comment 

When I meet with clients for the first time, I tell them about confidentiality. The moment the client opens his mouth, I explain, I lose the right to act for his adversaries. And most likely, that moment occurs even earlier: when the client walks through the door of my office or even schedules an appointment with me. Sometimes, I tell about an episode of The Sopranos where the mob boss saw every good divorce lawyer in town to conflict them out from representing his wife. This confidentiality burden is a good reason why lawyers charge for initial consultations (criminal or personal injury lawyers don’t because they usually never act for the Crown or insurance companies).

A recent case of a former unmarried couple’s battle in family court over their child is a good example of the importance of confidentiality (M.S.K. v. T.L.T., 2011 ONSC 5478 (CanLII)). It’s been a long fight with many motions and court orders since the couple’s separation in 2000. But last Tuesday, on September 20, 2011, Justice Wilson of the Superior Court issued her decision on an issue of confidentiality: she ordered that Lorne Wolfson and his firm be removed as the male party’s lawyer because Wolfson’s clerk worked for the female party’s lawyer before.

The reasons for Justice Wilson’s decision explain the test for conflicting a lawyer out of a case:

1) a previous relationship with the lawyer who is allegedly in a conflict of interest
2) the relationship must be sufficiently related to this case
3) the lawyer fails to prove not receiving any relevant confidential information in the prior case

The lawyer or his firm will be in a conflict of interest even if the relationship above was with the lawyer’s employee.

The purpose of this test is to ensure the public’s confidence in the justice system and in lawyers. The competing factor that the court must consider is the harm that losing a lawyer causes a litigant.

If branches (1) and (2) of the test above are true, the court will presume transfer of confidential information. The lawyer can still prevent the court from conflicting him out if he can prove there was no such transfer. But the lawyer’s burden of proof is heavy. A case called Marinangeli v. Marinangeli shows the weight of this burden: lawyer 1 who used to work for party A joined a firm that acted for party B. The firm erected an “ethical wall” around lawyer 1, and he swore in an affidavit that he didn’t discuss A’s file with anyone at the firm and didn’t even remember the file’s specific details. But lawyer 2 at the firm who acted for B failed to swear his own affidavit. The court found that the burden of the third step in the conflict test was on lawyer 2, and he failed to discharge it.

Justice Wilson found that Wolfson’s clerk had a previous relationship with the female party because the clerk used to work for the female party’s previous lawyer when he represented the woman in the same separation battle. The judge found that the clerk’s past relationship with the female litigant was sufficiently related to the current case. At that point, the judge presumed that the clerk was privy to the woman’s confidential information. Like in Marinangeli, the clerk filed her affidavit, but in contrast to Marinangeli, no ethical wall was erected around her. And Wolfson didn’t file his own affidavit. Not surprisingly, Justice Wilson found that Wolfson failed to discharge the burden of the third step of the test. Since Wolfson’s client didn’t give any evidence of harm he would suffer if the court removed Wolfson, the appearance of the justice system’s integrity sealed the fate of this motion, and Justice Wilson ordered that the law firm representing the male party be removed as his lawyers of record.

Pulat Yunusov is a Toronto litigation lawyer.

 


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How not to sue Dragons’ Den

By: Pulat Yunusov · August 31, 2011 · Filed Under Civil Procedure, Media Law · 2 Comments 

Every time I see the Dragons belittle a sweating contestant from their raised TV studio platform that reminds of Olympus I catch a breath. It’s not Jerry Springer but what if one of the scorned pitchers loses it and throws his heavy business idea right at a Dragon’s head? Thankfully, I’ve never seen such a sight, but at least one unlucky show participant did sue the CBC for defamation after a particularly nasty broadcast. His litigation imploded at the summary judgment motion teaching us something about both the defamation law and the inner workings the famous TV show.

In his judgment, Justice Lofchik summarized well what happened between the plaintiff, Mr. Turmel, and the CBC. A Dragons’ Den producer recruited Turmel for his public speaking skills. No business idea was on the table at that time. Turmel signed a bulletproof consent and release. Then his unsuccessful pitch for “a local currency system for Brantford, Ontario” was taped on May 31, 2009. Dragons showed no mercy. Nine months later, the CBC broadcast Mr. Turmel’s pitch in a one-minute version. A week later, he sued the CBC for defamation.

The CBC brought a summary judgment motion. The rule for summary judgment is that “there is no genuine issue requiring a trial with respect to a claim or defence.” Summary judgment is serious because it deprives one or more parties to a lawsuit of a trial. But if there is no doubt about the outcome of a trial, the court should grant summary judgment to save everyone’s time and money.

The first issue at the motion was Mr. Turmel’s failure to notify the CBC of the alleged defamation in writing within six weeks of seeing the broadcast. Ontario’s Libel and Slander Act bars any claim for “libel in a newspaper or in a broadcast” if the plaintiff didn’t do that. Even serving a statement of claim a week after the broadcast didn’t help Mr. Turmel. The purpose of the written notice is to give the alleged defamer a chance to apologize and correct the record. The courts have held that you cannot expect a defendant to have such an opportunity once the litigation took off. If Mr. Turmel’s claim was for defamation, his ignorance of the (rather arcane) law killed his case.

The second issue was Mr. Turmel’s argument that his case was not only for defamation but also for breach of contract. If he was right, the Libel and Slander Act didn’t bar at least some of his claim. He was wrong. The judge held that even though “one might also glean the suggestion of a claim for breach of contract,” Mr. Turmel signed a rock-solid consent and release that was the whole contract between him and the CBC. Mr. Turmel wasn’t a vulnerable party deserving special treatment, and he could have consulted a lawyer when he signed the deal. The agreement was that the CBC could pretty much show or not show anything taped in exchange for giving him a chance to pitch to the Dragons.

So a procedural misstep in the defamation claim and a failure to plead another real cause of action caused Mr. Turmel to lose this summary judgment motion. Consulting a defamation lawyer could certainly have helped him, but who knows, maybe Mr. Turmel will launch a second salvo in his war with the CBC by pleading another cause of action. But which one?

Pulat Yunusov is a Toronto litigation lawyer.

 


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On democratic legitimacy of the courts

By: Pulat Yunusov · August 31, 2011 · Filed Under Legal Reform · 1 Comment 

My last post talked about how judges work with each other’s decisions. Today, I’d like to take a bird’s eye look at the relationship between the judiciary and Parliament. Unelected judges handle laws passed by elected legislatures such as Parliament of Canada or provincial parliaments. How they do it helps understand why it’s ok for judges to be unelected and why we need an independent judiciary.

In Canada, judges do really only two things with laws legislatures pass (also known as acts of legislature or statutes). They apply them or strike them down as unconstitutional.

When judges apply statutes, they interpret them. Legislatures often cannot or do not want to spell out every detail in rules of law they include in statutes. But the only way a law can work is by affecting conduct of specific people in a myriad specific life situations. If somebody believes you violated their legal rights or broke the law, they can sue you or charge you with a crime. You can quickly give in if you know you have nothing going for you. In that case, you will apply the law yourself. You will adjudicate your own case in favour of the other side. You can also dispute the other side’s reading of the law. You will claim that in that particular situation, the law means something different, and you neither broke it nor violated anyone’s rights. Now a judge will have to adjudicate this dispute and impose his or her reading of the law on both sides.

For example, Parliament of Canada defines “invention” as “any new and useful art, process, machine, manufacture or composition of matter” in a statute called Patent Act. Harvard University created a gene making mice susceptible to cancer. A mouse with a gene like that can help identify carcinogens. Harvard University tried to patent the mouse in Canada, failed, and sued the government. Harvard believed that its cancer mouse was an “invention” under Patent Act, but the patent office didn’t. So it was up to a federal court judge to adjudicate this dispute, which basically came down to interpreting the language of the statute.

One reason it was ok for an unelected judge to impose his reading of the law is because the elected legislature implicitly allowed him to do so. Our Parliament chooses broad language for its statutes in full knowledge that some disputes over their interpretation will end up in the courts. The elected Parliament accepts that unelected judges will interpret its acts. If our elected politicians didn’t want the courts to interpret legislative acts, they would use more specific language or create special tribunals to interpret statutes. It happens all the time and is also known as ousting the courts’ jurisdiction. Basically, our elected politicians can shield entire areas of law from the courts, and when they choose not to they essentially delegate some of their democratic mandate and legitimacy to the courts.

Even when the courts do have the power to interpret a democratically created statute, provincial legislatures and Parliament always have an option of overriding the courts’ reading by clarifying or changing the statute. The term “dialogue” is used to describe this relationship between the courts and the legislators. When the courts ultimately decided that the cancer mouse was not an invention, they did their best, very democratically, to divine the will and intention of Parliament. They did not try to make their own ethical or political judgment, and they knew perfectly well that if they got it wrong, Parliament can always correct them by clarifying the Patent Act. Parliament didn’t.

So one huge responsibility of the courts—interpreting legislative will—is far more democratic and legitimate than some think. Of course, the courts’ other responsibility—striking down laws as unconstitutional—is a lot more controversial, but this topic is better left for its own blog post.

Pulat Yunusov is a Toronto litigation lawyer.

 


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What can judges really do?

By: Pulat Yunusov · August 27, 2011 · Filed Under Legal Reform · 1 Comment 

Judges are powerful people. Sometimes, misconceptions about their power lead to calls for an elected judiciary or some other form of outside intervention in our courts. These are all bad ideas. Our judiciary must be independent from all potential litigants (including the state). It is also sufficiently self-regulated yet flexible.

The most important principle of our judicial system is that it is passive. It never goes out and forces anyone to do anything unless someone asks it to resolve a dispute. An aggrieved person or organization (or the state) must bring a valid cause of grievance to the courts’ attention. The courts will generally give the party blamed for the grievance a chance to dispute the accusation. After reviewing the dispute, the courts will resolve it by granting or denying a requested remedy to whoever brought the dispute to the courts. Courts’ decisions are always about a specific dispute before them, and you must be somehow connected to this dispute for the courts to be able to force you to do anything. (There are important exceptions such as references by governments to provincial appellate courts or to the Supreme Court of Canada.)

For example, if someone wants to stop a neighbour from smoking because it harms their child, they would go to the Superior Court. A judge will hear from both sides and make a decision in this particular dispute. But that judge cannot outlaw smoking near children for everyone everywhere.

If another judge refuses to enforce an anti-prostitution law because she finds it unconstitutional, her decision applies only to the specific person who was charged with a criminal offence under that law and who alleged to this judge that the law was unconstitutional. The judge cannot force the police from arresting the next john.

A judge’s decision can be binding only on those who have something to do with the specific dispute before that judge. If a judge finds a law under which Mr. X was arrested unconstitutional and as a remedy orders whoever has custody of Mr. X to release him, he must be released as contempt of court is a criminal offence in itself. But if Mr. X is arrested again for doing the same thing later on, a different judge doesn’t have to order the police to release him. The original judge’s decision is not binding on a fellow judge. Even the original judge can strangely change his or her mind and deem the law constitutional.

But judges respect each other’s decisions. This respect is also called deference, and it comes in different sizes. Fellow Superior Court judges often find each other’s decisions persuasive but they defer to each other much less than they do to judges of the Court of Appeal. A losing party can ask an appellate court to review the decision of the judge who first heard the case. An appellate decision in that case will enjoy greater deference from Superior Court judges when a similar case come before them. They will simply know that if they don’t defer, their decision will probably be overturned on appeal because a panel of appellate judges will probably decide similarly to the previous panel if the facts of the case are similar.

In criminal cases, this motivates the police to respect appellate court’s decisions in similar situations because the police would be wasting its resources by arresting people the courts will likely release. On the flip side, a crack-down decision even by a Superior Court’s judge will probably encourage the police to arrest more people in similar cases, even if to force the issue to an appellate court.

But one panel of the Court of Appeal cannot really force another panel to do anything. That creates a certain intrigue in our judiciary. In theory, even an appellate court’s decisions are not binding on lower courts because the next appellate panel can agree with a lower court’s judge going against the previous appellate panel. Rinse and repeat for the Supreme Court of Canada. Basically, the idea is that judges have a great amount of respect for each others’ decisions, and the respect grows exponentially with the level of the court making the decision, but no judge can really force another judge to do anything.

Yet this is a very simple, literal view of the judges’ power over each other. In reality, lower court judges pay so much deference to appellate court judges that higher court decisions are effectively binding on lower courts. Also, a more accurate way to see the hierarchy of judges is not through hard power but through learning, evolution, and respect. It is a soft power structure that binds lower courts judges rather predictably but still leaves room for revolutionary decisions defying existing norms.

Pulat Yunusov is a Toronto litigation lawyer.

 


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Constructive dismissal

By: Pulat Yunusov · August 14, 2011 · Filed Under Labour & Employment Law · 1 Comment 

Recently, I consulted a client who was in a conflict with a few co-workers. Let’s call him Jack. My client told me they did not like him. Jack received emails accusing him of poor communication skills and mistakes in the performance of his work duties. Jack convinced me that the accusations were groundless. He believed his co-workers wanted him to quit so they could help their friend take his place. He thought it was bullying and wanted it to stop. Jack’s bosses didn’t help him much. But none of the bosses took part in or condoned the criticisms. One of them did ask Jack’s co-workers to tone it down, and the tension went down a little for a while. Still, Jack felt uncomfortable at work.

Jack talked to me because he clearly wanted one of two things: a complete end to what he thought was bullying or termination of his employment with a fair severance package. He was willing to leave if his employer paid him enough.

Usually, if you quit your job, you cannot expect any good-bye package. Employers must pay terminated employees if they are dismissed not if they leave voluntarily. The amount depends on such things as how long you worked there, how much you made, what your job was, how you were originally hired, etc. If the employer fires you for a good reason, it doesn’t have to pay you anything. Good reasons can include lying, stealing, punching someone in the face, or failing to stop doing something wrong but less serious after several warnings. This is called dismissal for cause. If there is no “cause” for dismissal, you must get either an early notice of dismissal or whatever you would have earned during the period after such notice if they want to let you go right away.

But what if you did nothing wrong, but your job becomes unbearable? Sometimes in cases like that, you can quit and still expect a payment as if the employer terminated you without cause. When your employer changes a fundamental term of your job without your agreement, the law recognizes your right to quit and keep your pay for a certain while (or get it all at once). This is called constructive dismissal. The basic rule is a fundamental term of your job must be at stake and you must not agree to its change. Cutting your pay, demoting, taking all responsibility from you, cutting off your access to basic tools you need to do your job, demanding that you work completely new hours, serious harassment—all of those things may be constructive dismissal.

I told Jack that he probably didn’t yet have a case for constructive dismissal. A couple of sarcastic emails belittling his communication skills and a few times when he though he was intentionally set up for failure did not justify the risk of litigation. If Jack accused his employer of constructive dismissal and sued, he would definitely lose his job, but his success in getting a good package through the courts was far from guaranteed. The only assured payout was my legal fees. I recommended to wait and gather more evidence, and yes, to bear up. Law is a powerful, blunt, and expensive tool, and often it expects some degree of stoicism. That’s why it’s important to consult a lawyer before taking any drastic steps at work. We may actually prevent useless litigation.

Pulat Yunusov is a Toronto litigation lawyer.

 


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Credit rating agencies as courts of international finance

By: Pulat Yunusov · July 31, 2011 · Filed Under International Law · 1 Comment 

As I am writing this, President Obama announced a deal to avoid default on US government debt. If lawyers think in terms of courts, then what would be the legal consequences of the US default? While the legal issues of government’s failure to pay its debt to domestic lenders are unique and complex, the default in respect of foreign nation-state lenders such as China is probably even more interesting. There are no courts of international jurisdiction that can declare the US bankrupt, administer its assets, or enforce their judgment. The US is an independent country subject no one’s will despite the international law. But since the international law is a legal system, there must be some consequences for the US. One such factor is international rating agencies. You could hardly hear about the debt crisis in the US without learning that its excellent credit rating would likely suffer as a result. Apparently, private international rating agencies are filling some of the void in the international legal system that courts usually occupy within nation-states.

The three most important international credit rating agencies are Standard & Poor’s (S&P), Moody’s, and Fitch Group. S&P and Moody’s are American, and Fitch Group is controlled by a French corporation.

The biggest difference between credit rating agencies and courts is that rating agencies do not adjudicate disputes. But under the surface this difference is not so important. We can view events affecting credit ratings as disputes between the debtor and the lending community. Such events include defaults, budget deficits, and so on. The lending community wants some objective basis, for example, to charge a different interest rate as a result of one of the events above. And the debtor government wants to minimize its borrowing cost. Often these interests would come into conflict giving rise to the need for a third party to establish an objective basis for new lending terms. It sounds awfully like adjudication.

In theory, credit ratings are such independent, impartial, and objective assessments of the most optimal relationship between lenders and a borrower in accordance with generally accepted rules. Credit ratings basically result from applications of such rules and principles to a given debtor.

In practice, credit agencies are hardly accountable to anyone. They are for-profit, private organizations whose decisions are final and are not subject to review. The ratings’ impact is fast and powerful, and it usually directly affects interest rates available to the borrower. There is a good overview of other criticism of rating agencies on Wikipedia.

When countries, which desire to keep as much of their independence as possible, fail to establish formal and binding international governance and adjudication bodies, private organizations fill the legal void. It’s not necessarily a bad or a good thing, but it’s important to recognize the legal and enforcement role that these organizations play. Their existence also supports the view that international law exists.

Pulat Yunusov is a Toronto litigation lawyer.

 


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The purpose of blawgs

By: Pulat Yunusov · July 31, 2011 · Filed Under Legal Reform · Comments Off 

More than a year ago I wrote a post entitled “How lawyers think.” Its basic idea is that a lawyer’s job is to maximize legal protection of his client’s rights. Protecting rights means either of two things: one, letting the world know what your rights and their legal basis are, and, two, getting a court or tribunal to change the mind of someone who disagrees. Lawyers predict what kind of rights the courts will find that you have if it comes to litigation. That’s called giving legal advice, and that’s why lawyers think by imaging what would happen if this issue gets to court and how courts have decided similar issues in the past. All lawyers think about courts whether they are in litigation or not, and the courts is where the law becomes the law.

The previous sentence means that an act of Parliament is not really the law until the courts have adjudicated a dispute about what the specific legislative act or its provision means in a specific case. If all people understood the same text and applied it to the same facts the same way, we wouldn’t need courts. Lawyers predict what the courts will say the law is for the given facts, and litigators, in addition to that, offer judges their theories of what the law is in a given dispute. So advocacy in court is trying to influence the judge’s vision of what the law is and of how to apply it in this particular case. Without impartial and binding adjudication of disputes by the courts, the law is only what the strongest party (the police, the employer, the rich, and so on) says it is.

So if lawyering is predicting how the courts or tribunals will apply the law to a particular situation, blawging, in my opinion, is the same thing but by way of informal and accessible writing in a blog. A blawg should predict what the law is in some interesting case of current interest. A blawg is always a legal opinion, but it’s almost never legal advice, because it is addressed to a broad audience rather than a client. If I write about telephone number portability, the blog post should give a basic idea about what enforceable rights you will have if your telephone company decides to take your phone number from you. A blawg is not about what will happen, but rather about what you can reasonably accomplish by taking your case to a court or tribunal, if you have the time, the money, and the expertise.

In this sense, blawgs can be a little removed from reality because most people don’t have the time, the money, and the expertise to go to court. In fact, of those who do begin litigation, most never sustain it all the way to trial, which would be the first chance a judge will get to decide the case. That’s why lawyers, of course, must give practical advice in addition to pure legal advice, and it’s hard, and that’s why there is a disconnect between the public and lawyers. The client expects a solution and doesn’t care about the method, and the lawyer often must think in terms of courts because that’s all he or she may be qualified to do.

Perhaps blawgs can bridge this gap by educating the public about the law and teaching the public to self-regulate due to better knowledge of legal consequences. But unless we make access to the courts cheaper and easier so judges can hear and decide more cases that deserve to be heard and decided, blawgs alone will face an uphill struggle.

Pulat Yunusov is a Toronto litigation lawyer.

 


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The law of telephone numbers

By: Pulat Yunusov · July 31, 2011 · Filed Under Regulatory Law · 1 Comment 

A few days ago, I was shopping around for a good fax service. Besides receiving faxes by email and a few other musts, I needed a stable fax number. Who can afford to lose a number after spending thousands on advertising? There is goodwill in your number. Sometimes it is catchy and easy to remember. And many people still call businesses, so losing your listed number means losing clients or customers. For a lawyer, it can also mean not receiving a document, which was properly served at the lawyer’s listed fax. The bottom line is your phone or fax number can be precious. But is it really yours? The answer is no if “yours” means private property. But you can still rest assured that your number will point at your business unless you cancel your service.

The Telecommunications Act, a federal statute, empowers Canadian Radio-television Telecommunications Commission (CRTC) to regulate telephone numbering in Canada. So at least the local telephone company doesn’t own phone numbers. CRTC regulates the Canadian portion of the North American Numbering Plan, which includes Canada, the US, and many Carribbean countries. That’s why the country code for all these countries is the same: +1.

One of the basic CRTC rules local telephone companies must follow is uninterrupted service. It means if you pay for your basic phone line, your telephone company cannot cut you off. The important concept here is this: if Bell or Rogers could change your number at will, it would amount to interrupting your service because uninterrupted telephone service means that people can reach you at your number, not just that you can dial out. If your number suddenly changed, you’d lose half of your telephone service: all the people who had your number wouldn’t get through to you.

This is important because that’s how the law keeps your number yours right now. Telephone companies must provide uninterrupted service, and that obviously means a permanent phone number. Telephone service wouldn’t make sense if your number randomly changed.

It’s important to know this because if you interrupt your own service by not paying your bill for example or by closing your account, the uninterrupted service rule does not bind the phone company anymore. Since you cancelled the service, the phone company can give your number to someone else. That’s why when you want to move your number to another provider, they will always tell you to stay with the old one until the move is complete. If you cancel too early, you can lose your number.

Your number stays yours due to the uninterrupted service rule. This is not really ownership. It’s more like rent, since as long as you pay your basic phone bill, the telephone company must connect your number.

It make sense to have a telephone number registry linking numbers to specific people or organizations as long as they pay for the registration. This is exactly how Internet domain names work. It doesn’t matter who connects you to the Internet or who hosts your website: as long as you pay Godaddy or some other registrar a small annual fee, your domain is safe. And it’s not like telephones are going out of fashion. The demand for numbers is so explosive, we are getting a third area code in Toronto. It’s time to give us more control over our telephone numbers.

Pulat Yunusov is a Toronto litigation lawyer.

 


(Post sponsored by AdviceScene)

 

The monarchy in Canada

By: Pulat Yunusov · July 16, 2011 · Filed Under Constitutional Law, Legal Reform · 3 Comments 

The recent royal visit offers a good chance to talk about monarchy in Canada. Besides just being nice Canadians, the people who greeted the newly married royal couple were often ecstatic, filled with genuine love for the two people, one of which has done nothing of significance while the other has never been heard of until recently. Despite a minimal role in Canada, the monarchy seems to enjoy support here, and the republican groups occupy the margins of our political discourse. But the history of the Canadian democracy is the history of overcoming the monarchy. All the good things we are proud of: the rule of law, democratic elections, and civil rights—emerged despite the monarchy and often out of conflict with the monarchy. Today, Canada’s democracy is the fruit of the monarchy’s defeat. The royals have zero power in this country. The Queen is Canada’s head of state only on paper, and many people don’t know or remember that this is the finale of a centuries-long fight between the people and the monarchy. But besides the remaining formal royal footprints on our political system, there are other, more substantial remnants of monarchy in the Canadian government and legal system.

The less monarchy we had in Canada, the more democracy we had. The history of Canada’s democracy is the history of pushing back the monarchy until it was reduced to a rubber stamp for our democratically elected legislators. It is the triumph of the Canadian democracy that the Royal Assent is a formality. Monarchs have not always been as likable as the young couple from London, UK. In 1776, the US Declaration of Independence called the British rule “absolute Despotism.” Five centuries earlier, English nobles forced their king into signingphoto by Alex Jilitsky on Flickr Magna Carta—a historic document that granted civil liberties and limited the royal power. Magna Carta, a blueprint for modern democratic constitutions, came about in spite of the monarch. The barons basically fought with the king for their rights. That’s the role of the monarch in our democratic tradition: give up more and more power to the people as the royal vigour increasingly declines.

The era of the strong monarchy also represents the backward times of racism and religious discrimination. The monarchy itself remains discriminatory: no Catholics and no bloodline outsiders. If any Canadian institution used the rules of succession to the British throne, the public would ostracize that institution and the courts would probably stop the practice. But the Ontario Superior Court of Justice refused to apply anti-discrimination provisions of the Charter to the rules of succession to the British throne. In 2003, Justice Rouleau of the Superior Court essentially recognized the British throne and the Queen as a foreign institution governed by foreign rules inherited by our constitution (O’Donohue v. Canada, 2003 CanLII 41404 (ON SC)). Since we can’t change the foreign rules and we can’t change our constitution, we are stuck with the discriminatory foreign monarchy.

Some of the best things about Canada are the rule of law, civil liberties, and a democratically elected legislature. The view that the monarchy somehow links us to the English legal and political tradition that gave us all those things is quite absurd. We owe much of our legal and democratic tradition to England, but that tradition emerged in England despite the monarchy. Democratic rights and the independent judiciary were a concession by the monarchy in favour of powerful land owners, first, and the general public, later. Besides, much of our Canadian democratic tradition is completely domestic, and some was borrowed from the US. While we have two Constitution Acts, the UK doesn’t even have a written constitution.

When we see the royal couple on TV, we should remember that they symbolize an institution that fought long and hard against civil liberties, the rule of law, and a democratic legislature. That institution has completely lost its power as a result of this conflict. The people and the democracy have won. For some reason, we still allow the royals to live in palaces and act out a fairy tale at our expense.

But there are other dangers in the monarchy fetish, especially in its recent revival. Our government still retains some qualities of the monarchy. Generally, these powers of the Prime Minister and the Cabinet are called the royal prerogative. These are the powers that the monarchy has always enjoyed but that do not come from the constitution, an act of parliament, or the common law. These are basically the powers that the government has not surrendered to Parliament or to provincial legislatures. This is, for example, the power to have foreign relations. When the courts reviewed the Prime Minister’s decision not to request the repatriation of Omar Khadr, government lawyers argued that his decision was an exercise of the royal prerogative and not subject to Charter scrutiny. The courts have rejected this position (Canada (Prime Minister) v. Khadr, 2010 SCC 3).

Besides the royal prerogative, the government has a wide array of powers that give it discretion in making decisions. Discretion means the government is less accountable about the rules and reasons it follows in making a decision. Often we want to give the government discretion for the sake of efficiency, but the courts must be able to control the limits of discretion and to overturn obviously unreasonable decisions. This is how the rule of law works.Photo by The Queen's Hall on Flickr

Fascination with the monarchy can produce or can be a symptom of a lower expectation of accountability from the government. We may defer to the government more and more. The danger is when we start treating the government as a benevolent ruler. Governments are made of people, and people are corrupted by unaccountable power. The history of democracy in the UK and in Canada was a history of people taking the power back from the ruler.

The ceremonial formality of the Queen also breeds constitutional uncertainty, for example, when the Prime Minister prorogues Parliament so often that some parts of the public genuinely expect the figurehead governor-general to refuse to cooperate. She of course, did cooperate and that was the right thing to do from the legal standpoint, but the potential for a crisis exists.

Do we even need a head of state? It is an inheritance from the Middle Ages, when every nation had a powerful ruler. Modern democracies have leaders but they should be professional officials hired for a limited term, and nothing more. Prime ministers should not generate patriotic fervor. They must be professional politicians who embody certain popular political platforms. Let’s hope that prime ministers cannot mess up too much, and fortunately we have the ballot and the independent judiciary to hold them and their ministers to account. A foreign figurehead doesn’t really figure in this equation.

Pulat Yunusov is a Toronto litigation lawyer.

 


(Post sponsored by AdviceScene)

 

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