Wednesday, January 13, 2016


1. Use "said" in the most superfluous ways possible. Bonus points if you can use "said" more than once in a sentence without talking about dialogue. As in: "The Plaintiff executed said contract by appending his usual and customary signature to said documentary exhibit, referred to hereinafter as the documentary exhibit." Using "said" many, many times will imbue your document with legal magic, letting you charge far more than is usual for this work of literary genius. Clients may assume that without the said "saids" the document might have been invalid, or at least be far less scholarly in nature.

2. Write out all numerical references in both words and numerals, so as to be as redundant as possible, and risk having the words and numbers not match, thus creating many subsequent work opportunities for solicitors to render legal opinions on those discrepancies, and barristers to seek judicial pronouncements on such discrepancies. As in: "The purchaser shall pay One Hundred and Twenty Seven Thousand Dollars ($1,270,000.00) in Canadian currency to the seller in exchange for title to said land."

3. Utilize as complicated word and sentence structures as possible, as clients will be impressed that you're able to figure out the meaning of the documents you're creating since they can't possibly follow the meanings themselves. As in: "The party of the first party, hereinafter the First Party, and hereforeto the sub-leasee, in the above-captioned matter..."

4. Write "WITHOUT PREJUDICE" at the top right of every letter or other document you create. This will imbue the document with magical qualities even greater than those created by the superfluous use of the word "said," so that you can say whatever you want, and it will never be held against you. It will be like the document is the Invisible Man, both there and not there. 

5. Write "DO GOVERN YOURSELF ACCORDINGLY" at the bottom left of every letter you create. Make sure it's always all in capitals and in bold. The capitals and bold are vital, otherwise it won't legally work like it's supposed to work. Closing your letters with this, instead of or in addition to the boring and prosaic "Sincerely" or "Your truly" will compel people to do whatever you're asking of them in the letter. Even if they don't want to do it, they'll feel unable to stop themselves. Demands for payments of money. Demands to do or not do something. They'll all be met with a cheerful smile if you use this age old legal phrase. 

As a longstanding teacher of legal writing, and fan of the plain language legal writing movement, it pains me that even new young law students continue to believe that the features I mention above make them sound more like a lawyer, or worse still that broadly using such words enhances legal results. It's been a long personal journey of recovery for me to rid myself of such habits, and it can still be a struggle to resist the impulse to sound lawyerly. 

We should all be asking ourselves in our lives, and in our writing: "do I really need this thing, and what purpose is it really serving?" If we can come up with a good answer, then by all means keep it. But if the answer is "I don't know," then some further reflection is clearly required. 

Monday, January 11, 2016


Most jurisdictions have a rental board that deals with residential landlord-tenant disputes. The board has its own rules, its own forms, and its own schedules. It's meant to be accessible without lawyers to both landlords and tenants (though lawyers can certainly be helpful). 

But a vast number of landlord-tenant disputes involve commercial premises. Where do those landlords or tenants go to seek justice? What is a landlord's recourse when a tenant stops paying rent or refuses to leave rented premises after a lease expires? What can a tenant do when a landlord locks him out of premises over which he holds a lease? Who ya gonna call? In Ontario the answer is: the Superior Court of Justice. 

The Superior Court is always the place to go when there's no other place else you're supposed to be going legally speaking. So you don't go there for residential landlord-tenant matters, because there's already an administrative tribunal set up for that. But the only thing regulating commercial leasing is the common law of contract, plus what's known as the Commercial Tenancies Act, R.S.O. c. L.7.

That Act generally applies to all tenancies to which the Residential Tenancies Act, 2006 does not apply. Unfortunately the Commercial Tenancies Act isn't the easiest Act to read. It's got a lot of really old language in it that's never been "modernized," so that you're left with provisions like: "Every person has the like remedy by distress and impounding and selling the property distrained in cases of rents seck as in the case of rent reserved upon the lease." And no, "rents seck" isn't a typo, it comes with the Middle English "rent sek" which in turn comes from the Anglo-French "rente seque" meaning "dry rent." I highly advise you to retain a lawyer to advise you on your rights and obligations under the Act.

The Commercial Tenancies Act contains lots of useful provisions for both commercial landlords and tenants, though it's definitely not a complete code of procedure governing commercial tenancies. The gaps are filled in by the common law of contract. For landlords, there are provisions like s. 58 which provides that a tenant will owe a landlord twice the monthly rent for every month during which he illegally overholds a property beyond the expiry or termination of a lease. For tenants, there are provisions like s-s. 32(2) which permits a sub-tenant to serve a statutory declaration on a landlord who is seeking to seize tenant goods for non-payment of rent confirming that the tenant has no interest in the property of the sub-tenant, and that the sub-tenant's property therefore shouldn't be seized.

Because the Superior Court is a court of "original inherent jurisdiction," you can ask it for any remedy you think to be just. You might also have recourse to the Small Claims Court for money or property disputes under $25,000 in value involving commercial leases, but you can't get orders from that court forcing people to do or not so things - like evicting a tenant - you can only get money or property returned. So Small Claims Court has limited use in commercial lease disputes. 

The key to happy commercial leasing is good legal advice (for both the landlord and the tenant) prior to signing a lease. Such advice can be a real bargain compared to the expense of going to court later to fight over whether or not the terms of the lease have been breached, and what remedies should be granted for that breach. But be assured that the Superior Court of Justice, the common law, and the Commercial Tenancies Act do provide for robust remedies for both landlord and tenants facing commercial leasing injustices. 

Sunday, January 10, 2016


I'm often asked by my criminal defence clients: "should I plead guilty? What you do think I should do?" Unfortunately, these are such personal decisions, potentially have such great ramifications for my clients' lives, that I unfortunately can't give them direct answers to those kinds of questions.

The best I can do is explain to them: (1) all of their options (sometimes there are more options than simply plead or don't plead), (2) the likely consequences of their options, and (3) that usually they don't have to make an instantaneous decision about pleading. They can take a few days or weeks to talk it over with friends and family, and ask me follow up questions. The last thing I want for any of my clients is for them to later regret whatever decisions they arrive at. 

There are five primary factors I tell my clients to consider when deciding whether or not to plead.

1. Did you actually commit a criminal act? For clients who are completely innocent of any wrong doing, I can't ethically help them plead guilty to things they didn't do. Even though they might be offered good plea "deals" and even though those deals would get their matters out of the way so that they could move on with lives. I (and other criminal defence lawyers) just can't do that. But there's some nuance to this question. Even if you didn't do exactly what is alleged factually or legally against you, you might have still committed a criminal offence, and so you might still be able to properly plead to something. 

2. Can you live with the likely consequences of a guilty plea? If the consequence of a plea will be a criminal record, and you absolutely can't live with that - perhaps because it would ruin your career - then you probably won't want to plead. Likewise if there will be a consequence like a two year driving suspension that you can't live with, again you'll want to think twice before pleading. But if the consequences won't ruin your life - maybe you'll be getting a discharge that avoids a criminal record, or receive a fine that avoids jail - that a plea might be a good idea.

3. Can you financially and emotionally afford to go to trial? The answer to this question might depend on the kind of charges you are facing. Going to trial on an impaired driving charge might only cost you a few thousand dollars in legal fees, and the time waiting for a trial date could be under a year. However, going to trial on a drug conspiracy might involved tens of thousands of dollars in legal fees, and many years of legal proceedings as the case drags through first a preliminary inquiry and then possibly a multi-week trial. Some of my clients just "want to get it over with" and move on with their lives. Whereas others are willing to be patient, and spend a year or more waiting to see how things play out. 

4. Is the sentence after trial likely to be much worse than the sentence on a plea? The rule of thumb is that a guilty plea will save you about 1/3 off your sentence. But sometimes it may be a lot more of less. Like the difference between getting a criminal record, and not getting a criminal record. Thus you and your lawyer will need to carefully evaluate the "bad outcome" risk of going to trial. If the Crown is seeking two years imprisonment on a plea, and the worst case scenario after trial might be 2 1/2 years, then that isn't a lot of risk to take. But if the Crown will take a fine on a plea, and will want three months in jail after trial, then that is a huge difference. 

5. What are you chances of winning a trial? This is a question to which your lawyer won't be able to give you precise odds, but she or he should be able to tell you in general terms whether you have a defence to present. Sometimes the defence might be very "technical" (like that an officer wasn't properly qualified to administer a particular test), sometimes it might be based on a violation of your "rights" (like that there was no legal power to search you car), and at other time it could simply be based on your testimony needing to be believed at trial that you "didn't do it." Your lawyer should be able to tell you if you have good or bad chances at trial, based on the evidence the Crown plans to present against you, and the legal defences you'll be able to raise. 

For any of the considerations, the key point to remember is that you should get some legal advice prior to making the decision to plead or not plead. That advice might be from your own privately retained lawyer, from a lawyer paid by legal aid, or from duty counsel in the courthouse. Where you get the advice is less important than the fact that you need such advice prior to pleading or setting a trial date. 

Saturday, January 9, 2016


You've just lost a trial or a motion in your law case. You're angry. You're disappointed. Your gut urge is to continuing seeking justice in an appeal!

I get that. My practice focusses on appeals: civil, criminal, family. I use my professional skills to evaluate clients' potential appeals, and explain to them their likely prospects of success prior to my agreeing to formally file appeals for them. For the majority of those who approach me, I agree to take on their cases because there appears to be something worth appealing. 

Where there's a reasonable chance of success in an appeal, and the overall potential appeal outcome would be in a client's best interests, I'm more than happy to vigorously use all my experience to obtain the best possible results before whichever appeal court a client might need to go to: Ontario Divisional Court, Ontario Court of Appeal, Federal Court of Appeal, Tax Court of Canada, Supreme Court of Canada. Other lawyers refer their appeals to me, in part because it's often best for a new set of eyes to take an objective look at what happened at trial when evaluating an appeal. 

But where an appeal stands no real chance of success, or the client would expend considerable resources on an appeal for an outcome that isn't likely to materially assist her or him at the end of the day, I feel ethically bound to advise that an appeal would not be in the client's best interests. I'll try to give the client other alternatives to an appeal in order to still get what the client wants and needs through other means. I'm in the business of telling clients how they can ultimately get what they want, rather than in frustrating their aspirations. But an appeal might not be the best way to get a particular result, and I'll readily tell clients if they're wasting time thinking about an appeal. 

To be clear, I'm not in the business of doing "easy" appeals. There's no such thing. The burden is always on the appellant to demonstrate to the appeal court why the lower court made an error, and why the appeal court should be bothered to do something about that error. 

Some clients won't like that answer, and will either find other lawyers to do those dubious appeals, or will undertake to do them themselves. That's their right. But everyone needs to understand that appeals are fundamentally different from trials or motions. An appeal is not just a second kick at the trial or motion "can."

Family appeals are likely the most common area where after evaluating an appeal, I'm required to tell clients that an appeal isn't a good idea. That's because the order may be very factually based, and the best tactic might be for the client to just wait six months and then bring a much less expensive "change of circumstances" motion to a lower court to change in the adverse order, rather than expending much more money and the same six months pursuing an appeal. 

Here are my top three considerations that you should take account of prior to approaching a lawyer to undertake an appeal:

1. Do you really have an error of law to appeal? Appeal courts aren't there to retry cases on the facts. They'll defer to the opinions of trial judges on factual issues, since they are the ones who hear the live witnesses, and can best judge credibility. So if your family trial case came down to mother and father testifying, and trial judge believed father, and rejected the testimony of mother, that by itself can be difficult to appeal. Whereas if the trial judge excluded all manner of relevant documentary evidence, refused to consider expert evidence, and generally misapprehended the evidence, that can be a winner appeal. 

2. Will the likely outcome of an appeal get you what you want? A typical best case outcome from an appeal is a new trial, rather than giving you everything you were originally seeking at trial. If you already went through a two week trial, and can't emotionally or financially bear the thought of doing that again, then an appeal might not be for you. There are more discrete issues that an appeal court might completely fix, like erasing a costs order, fixing serious math errors made by a trial judge, or reducing a sentence. And sometimes you goal might simply be a new trial. You just need to be realistic about what an appeal court will be willing to fix, even if there were errors in the lower court. 

3. Do you have the resources to pursue an appeal and its possible outcome of more litigation? Appeals are even more legally technical than trials. You really need a lawyer to successfully pursue one. To hire that lawyer, you might need greater resources than you expended in the lower court for the motion or trial. Appeals don't consume a lot of in-court time - most hearings only take about 1/2 a day - but they do take up a lot of preparation time in writing facta of argument and preparing the "appeal books" containing the exhibits and transcripts of trial evidence. Plus, you'll need to pay for those trial transcripts. Lastly, if you do get an appeal result ordering a new trial, you'll need to be able to fund that trial as well. 

Yes, justice should be more accessible and inexpensive. But believe it or not, it's partly because courts bend over backwards to protect litigant rights that justice becomes so difficult to pursue - meaning, courts will not cut off a party wanting to present lots of evidence, or extensively cross-examine the other side's evidence, or make very detailed legal argument. All that takes time. And legal time costs money.

I do think it's always a good idea to have a lawyer give you professional advice on your appeal prospects. Getting an appeal legal opinion will be much less expensive than hiring someone to actually do the appeal. You might be able to get that opinion from your trial lawyer, or you might want to go to a lawyer who concentrates on appeals. But either way, make sure you act quickly as appeal limitation periods are usually only 30 days after a trial or motion judgment, and could be a short of 7 or 14 days for some kinds of cases. 

Thursday, January 7, 2016


The first - and perhaps most important - decision anyone is faced with when contemplating pursuing a civil claim against someone else is: which court should I be proceeding before? If life and the law were simple, there would only be one court that would deal with all problems. 

But unfortunately as most of us have discovered by adulthood, life is never as simple as our younger selves hoped it would be. And those who need to brave the court system likewise soon discover that there are a complex multiplicity of courts and tribunals out there, any one of which might be "the place" you're supposed to go to seek a solution to your particular legal problem. Showing up at the wrong one can be like arriving at the wrong birthday party, where you're told there's no cake for the likes of you!

Although Ontario also has criminal and family courts in addition to a plethora of administrative tribunals, for the purposes of any "civil" claim the sole choices are between the Small Claims Court and the Superior Court of Justice (unless the claim is one of the few going to the Federal Court). Confusingly, the Small Claims Court is actually an arm of the Superior Court, but where "Deputy Judges" preside over a less complex procedure involving less risk for the losers and also lesser rewards for the winners. 

The key things to know about the Small Claims Court are that:

1. You can only demand damages up to $25,000. You can still bring a claim worth potentially much more than that before the Small Claims Court, but you'll be required to "abandon" the excess. 

2. You can only demand the return of property up to a value of $25,0000. 

3. You can't demand any other kind of remedy, like declaratory or injunctive relief, meaning you can't ask the court to force another person to do or not do something, or declare that something is or is not the case - like that a law is unconstitutional. 

4. You can only obtain "costs" (sometimes awarded to the winning party) of 15% of the value of all claims pending before the court, even if you spent much more on legal fees. 

5. Your legal fees charged by a lawyer will be much, much cheaper in Small Claims Court than in the Superior Court of Justice, because of the simpler and quicker procedure involved. 

What this means to choosing between civil courts is that if you're definitely seeking a remedy other than money or property, you've got no choice - you're going to the Superior Court of Justice. If you're seeking money or property worth less than $25,000, then again the choice is a no brainer - you're going to the Small Claims Court. 

The zone of claims where the choice gets tricky is for those worth a bit (though not a massive amount) over $25,000. My rule of thumb is that any claim worth under $40,000 should choose to go to the Small Claims Court, since you're probably going to spend at least another $15,000 in legal fees going to the Superior Court of Justice. Even claims up to $50,000 might wish to consider cutting their numbers in half to go to Small Claims. 

Over $50,000, and Superior Court of Justice is likely the way to go. If you claim $100,000 or less there, you're entitled to take advantage of what's known as a "simplified procedure" - though it's still a lot more costly and time consuming than Small Claims Court procedure. 

But before you settle on the Superior Court of Justice route for what you're convinced is your very valuable claim, get some legal advice about claim valuation. You might very legitimately believe that you've suffered a great injustice at the hands of the plaintiff, but the burden rests solely on you as plaintiff to present proof on a balance of probability of quantification of damages. This means proof of what you've lost, and what is a fair amount payable by the defendant to "make you whole" again. 

Figuring out damages numbers is easiest when you're fighting over a thing - like a vehicle - with a well known value. Damages are more difficult to quantify for less well agreed upon numbers, like the value of a broken arm. Damages can become very difficult to put a number on when they are intangible - like damage to reputation due to defamation. 

You definitely don't want to "win" after a lengthy and expensive trial, only to be awarded $1 - or any figure that is less than the amounts you've spent on pursuing the case.