Wednesday, April 17, 2013

Why Early Legal Advice and Representation in Professional Discipline Matters is Important

If you're a professional, chances are that sometime in your career you might have some form of complaint filed against you with your professional regulatory body by a client, member of the public, or the regulators themselves. If you accept that you're probably going to need a lawyer at some point in the discipline process, the real question is: when?

It's a personal decision for every professional as to when legal counsel should be retained, but I'll share with you my experience of the many professional discipline cases I work on, where counsel is retained early in the process as compared to late in the process. I've touched on this topic before in an earlier post, but want to highlight this time around the two fundamental stages to discipline proceedings, and the important consideration of insurance coverage.


Generally speaking there are two phases to most professional misconduct allegation regulatory processes: (1) investigations, and (2) hearings. Often these phases are broken up into sub-phases, but investigations and hearings are the two major divisions when it comes to deciding when to retain counsel. 

The reality is that a lot of people wait until the hearings stage of professional discipline proceedings to find a lawyer. I completely understand why. At the investigations stage they think the matter might just go away, they think they aren't exposed to much risk, they want to keep the matter private, they hope that their own written submissions can persuade the regulator to drop the matter, they don't think a lawyer could do them much good early in the process, and they're concerned about legal costs. 

The major factor these professionals often don't consider in delaying seeking out a lawyer is that the best chance to stop a misconduct hearing dead in its tracks is to prevent an investigation from ever getting to the hearings stage of proceedings. A lawyer is best placed to do this. 

Acting for yourself at the investigations stage, you'll be at a significant disadvantage in: (1) not having a background in the discipline procedures of your organization; (2) not being fully informed of the means and range of potential resolutions to your proceedings; (3) not being able to talk freely and negotiate with the investigator or other officials of the regulator about your case because of the risk of your making prejudicial admissions and the possible reluctance of regulators to speak frankly with the target of an investigation. 

Another important factor to consider is that legal counsel are usually far less expensive at the investigations stage than at the hearings stage. At the investigations stage, some factual and legal review, advice, negotiations and written submissions may be required, but there are no appearances before a tribunal, and no requirement to do all the work required by the many procedural steps leading up to a tribunal hearing. So early retention of counsel who can prevent a case proceeding to a hearing will save you money as well as worry. Even if your case does proceed to a hearing, the preparation the lawyer already did during the investigation stage might mean that the total investigation stage plus hearing stage legal costs would not exceed the costs of a lawyer brought in only for the hearing stage.


The last factor to take account of when considering the point to retain legal counsel is that you might already have comprehensive insurance coverage providing generous professional discipline proceedings coverage to pay all your legal fees at all stages of proceedings - both during the investigations stage and during the hearings stage. If so, why wait to engage that coverage. 

You do need to carefully verify your insurance policy coverage details. Insurance usually doesn't cover the defence of criminal allegations proceeding in criminal courts - though rest assured that professional misconduct allegations don't usually escalate into criminal charges. Insurance may sometimes cover civil negligence proceedings against you in civil courts, though be aware that it might be a separate insurance policy that covers the civil proceedings, or that the professional misconduct insurance may have quite different coverage terms than that civil negligence coverage. 

Consider contacting and assessing lawyers even before you contact your insurer. You may have a duty under your insurance policy to quickly report claims, so don't delay the reporting while you are lawyer hunting, but I've found that if you locate a lawyer you like prior to sorting out all the details of your insurance coverage, you insurer will usually let you use your lawyer of choice so long as his or her fees are reasonable and the work is within the scope of the policy coverage. Your official right to a lawyer of your own choice will vary depending on the terms of the policy, but I've found that insurers rarely want to interfere with lawyer-client relations, so even if in theory you are required or encouraged to use a lawyer off the insurer's "list," the insurer will usually do its best to either put your own lawyer on the list, or grant you an exception to the list lawyers. 


Engaging a lawyer at the earliest possible time in professional misconduct allegation proceedings could be free (if you're insured), will minimize your overall legal expenses (even if you aren't insured), maximize your chances of terminating misconduct investigations prior to their escalating to discipline tribunals, and minimize the scope and impact of any tribunal hearings that do actually happen by shaping the constellation of facts and allegations that go before the tribunal. 

Sunday, April 7, 2013

Will Getting Married Help Me Immigrate to Canada as a Sponsored Spouse?

Image Credit: Library and Archives Canada
Common law spouses have in Canada and elsewhere acquired many of the rights and duties previously enjoyed only by legally married spouses. However, living common law does still not amount to the same legal existence as being married, be it where family law, tax law or immigration law is concerned.

For immigration to Canada purposes, spouses might both be trying to come to Canada, or one spouse might already be a Canadian citizen or permanent resident, and thus be potentially eligible to sponsor the other spouse as a Canadian immigrant. This post is only about the pros and cons of marriage where one spouse is eligible to sponsor.

Canadian immigration law has now extended similar rights of sponsorship to common law spouses as were previously only available to married spouses. However, being considered common law spouses requires that you have been continuously living together for at least one year prior to your immigration application. This proof of cohabitation can be a hassle. And for the spouse from a country where Canada doesn't like to issue visitor visas, because of what it may perceive as the risk that people of that nationality won't depart Canada after their visitor status expires, common law spousal status may be an impossibility unless the Canadian spouse wants to move abroad in order to co-habitate so that a common law spousal sponsorship application can happen.

Getting legally married means you don't need to prove to the Canadian government that you've lived together for even one day. You might need to show some evidence about the legitimacy of the marriage, but that's a lot easier to do than proving the legitimacy of a common law relationship. Show you had a wedding ceremony, show that your families know about the marriage, show that you care about each other through your communications/gifts/visits/children, and you're probably good to go as far as Citizenship and Immigration Canada (CIC) is concerned.

But in order to demonstrate common law status, CIC usually wants proof of joint bank accounts, life insurance policies, property ownership or leases, and affidavits from yourselves, family, friends and neighbours, in addition to your being able to precisely prove that you've been living together for a year prior to applying. Start co-habitating in Canada, then get called back to your homeland for 3 months because of a sick relative, and you've likely wrecked your chances at common law status. Brief times apart are acceptable, but it's a matter of government discretion to as how much of a separation will be considerable permissible.

You should also be aware that with same sex couples finally having the same rights to marry in Canada as opposite sex couples, the get married or don't get married for immigration debate is now as relevant for them as it is for all other couples.

To be clear, a sham marriage is not going to go over any better with CIC than a sham living together common law relationship. But the bottom line is that marriage will likely make your immigration application process go more smoothly.

If you're committed to never getting married, and can eventually qualify for common law status, the desire for immigration shouldn't make you violate your no marriage principles. But if you're like a lot of my newer couple immigration law clients who have been living together for around a year, are keen to be permanently united in Canada, and are thinking about eventually getting married but are putting off marriage for a couple of years until they are more settled, I always suggest that they carefully consider their position.

If the nature or newness of your relationship means that marriage isn't even on the horizon, then by all means proceed with a common law spousal sponsorship application. But if you have been talking about marriage anyway over the last year, and are thinking it is something you want to take care of very soon after the immigration process is finalized, you should think about whether it might be possible to get married prior to applying for immigration.

Marriage won't cure a shaky immigration application, and common law spousal status won't wreck a solid application, but marriage may make things easier. Just some food for your collective wedding cake sweet tooth.

Friday, April 5, 2013

Five Reasons Why the Tax Court of Canada is a Good Place to Litigate

The Tax Court of Canada Bench.
Photo Credit: Tax Court of Canada. 
With tax season now in full swing, I offer you the following thoughts on why the Tax Court isn't such a bad place to litigate against the government if you're unhappy with your assessment, reassessment or confirmation of taxes.

1. Electronic Filing - you can file pretty much any document that needs to be filed with the Tax Court by simply uploading it to the court's website, which is a still very rare practice in Canada. The Court even lets you file now, and pay later - you can mail in the filing fee within 5 days of filing the documents electronically.

2. Hearings and Registry Offices in Convenient Places - you can ask the Tax Court to hold a hearing almost anywhere in Canada, and it will regularly hold hearings in places as small as Wabush, Yarmouth and Percé. Plus there are registry offices for the court in every province and territory. By comparison, for many courts you're required to travel to the court, the court won't travel to you.

3. Easy to Get Hold of and Knowledgeable Registry Officers - wondering about an answer to the rules of court? Just pick up the phone, and helpful registry officers who are easy to get through to will answer all your questions.

4. Simplified Rules of Procedures - the Tax Court still has rules of procedure, no court can operate without them, but for the Tax Court the rules are a lot simpler than the ones you will find in other courts. It seems like someone carefully went through the rules of other courts when putting together the tax court rules, and threw out everything that seemed overly technical, and which would not particularly enhance litigation economy.

5. An Expert Bench - in many courts judges are supposed to be experts in a host of areas of law, but the reality is that it isn't possible to be an expert at everything. But with the Tax Court, the judges really can become experts because the court's jurisdiction is narrow enough: the Income Tax Act, Employment Insurance Act, GST/HST, CPP, Old Age Security, and a few other Acts.

Now that you're all excited about going to Tax Court, there are a few things you need to take account of before filing your appeal: (a) you will usually need to file and receive an answer to an internal objection first from an appeals or review officer within the government department that denied your claim prior to appealing to Tax Court; (b) if the taxpayer is a corporation, it must be represented by legal counsel, and (c) if your appeal is complicated, it's a great idea to be represented by a lawyer. At least in tax appeals it's often clearer than in some other types of cases as to whether hiring a lawyer is worth it, based on a comparison of the amount of tax in dispute compared to the likely legal fees to be incurred.

Tuesday, April 2, 2013

How Do I Make An Aboriginal Rights Claim in Court?

Map credit: NRCAN
It's now undisputed that Canadian Aboriginal peoples have rights. But if you're a member of one of those peoples, you might be wondering: "How do I claim my rights?"

You might be asking yourself questions like: "If I'm in court being criminally prosecuted or civilly sued, how do I invoke my rights?"

If you see environmental destruction being visited on your traditional territory by private interests, or witness the destruction of your community's way of life by government interests, you might wonder: "how can I use my rights in court to stop this destruction?"

The short answer is that you can accomplish a lot through relying on your rights in court, but you need to understand their limitations, and that the burden of proof falls entirely on you in court to prove those rights. 

Limitation #1: Aboriginal rights are collective rights exercisable by individuals. What this means to you is that you need the backing of your community to assert rights in court, and you need to be able to prove that you're a member of that community. There's no precise test of what an Aboriginal community amounts to for the purpose of a rights claim, or what being a member of the community requires - this is NOT a question of being on some Indian Act band list (though that can help). But you can't be out acting on your own without at least tacit or implicit community support if you expect to invoke Aboriginal rights in support of your actions.

Limitation #2: You need to be clear on whether you are advancing an Aboriginal title claim, Aboriginal treaty rights claim, or non-treaty Aboriginal rights claim. Unless you have the backing of your whole nation, and millions of dollars to spend on the litigation, don't bother with title - the courts have been clear that title exists, but don't seem to want to award it to anyone even after trials that have lasted for years! If your community is connected to a treaty - historic like those on the map above, or modern like those on the map below - carefully comb through its language to see if there is something in there which might help you. If your community doesn't have a treaty, or if the treaty isn't of any help in your particular situation, then you are left with a straight forward Aboriginal rights claim.

Limitation #3: You'll need lots of evidence to support your claim. You can't just make a bald claim of a right, and presume the court will accept it. In fact, the Crown might call evidence to rebut anything you do present, so make sure your evidence is relevant, compelling and voluminous. You might need an expert witness historian or anthropologist. If this sounds a bit much, remember that you're playing by the rules of court, not necessarily the rules of common sense. 

The most important thing you can do to make an Aboriginal rights claim work in court for you is to claim only the narrowest right which is still broad enough to assist you in your case. The broader the rights claim, the more evidence you will need, and the more nervous the court will get that granting you your claim might lead to an unpredictable domino effect throughout Canada among other Aboriginal peoples. You'd be quite right in thinking this wouldn't be such a bad thing, but remember that courts are by nature conservative institutions that worry about rocking the boat of state. 

You also really need a lawyer to make an Aboriginal rights claim work in court. There's certainly some legal work people can do for themselves, but Aboriginal rights claims can only be described as complicated and challenging to advance, even for the lawyers who are familiar with those types of cases. But you shouldn't necessarily expect to pay for all those legal costs out of your own personal pocket - these claims mainly work when a community is willing to support their costs (because there will ultimately be a benefit to the whole community), when the government agrees to provide test case funding, or the government is ordered to provide funding by a court.