tag:blogger.com,1999:blog-62616015160393222622024-03-11T21:52:15.332-07:00The Barrister BriefGordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.comBlogger127125tag:blogger.com,1999:blog-6261601516039322262.post-77199445461921665412018-02-11T08:00:00.001-08:002018-02-11T08:00:25.679-08:00See My Websites for New Blog PostsI greatly appreciate all the ongoing support over the past many years from my readers.<br />
<br />
Like what you're reading on The Barrister Brief? Want to read more?<br />
<br />
This blog will be maintained, but because online information platforms evolve new articles I'm creating will be posted to:<br />
<br />
1. my LinkedIn profile: <a href="https://www.linkedin.com/in/gordonscottcampbell/">https://www.linkedin.com/in/gordonscottcampbell/</a><br />
<br />
2. my Facebook page: <a href="https://www.facebook.com/gscLawFirm">https://www.facebook.com/gscLawFirm</a><br />
<br />
3. my Twitter feed: <a href="https://twitter.com/gsclawfirm">https://twitter.com/gsclawfirm</a><br />
<br />
4. one of the websites I maintain:<br />
<br />
a. <a href="http://www.acmlawfirm.ca/">www.acmlawfirm.ca</a> (the main law firm website which should include most articles)<br />
<br />
b. <a href="http://www.compleximmigration.ca/">www.compleximmigration.ca</a> (where you'll find immigration & citizenship law articles)<br />
<br />
c. <a href="http://www.nofearfamilylaw.com/">www.nofearfamilylaw.com</a> (where you'll find family law articles)<br />
<br />
d. <a href="http://www.defenceeast.com/">www.defenceeast.com</a> (where you'll find criminal law articles)<br />
<br />
e. <a href="http://www.taxappealscanada.com/">www.taxappealscanada.com</a> (where you'll find tax law articles)<br />
<br />
f. <a href="http://www.proconductlaw.com/">www.proconductlaw.com</a> (where you'll find employment & professional conduct law articles)<br />
<br />
<br />
Gordon<br />
<br />
<br />
<br />
<br />Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com45tag:blogger.com,1999:blog-6261601516039322262.post-57213739647308099292016-10-25T05:06:00.001-07:002016-10-25T05:09:10.004-07:00WHY THINKING A REAL ESTATE LAWYER IS AN UNNECESSARY LUXURY COULD COST YOU BIG IN YOUR NEXT REAL ESTATE DEAL<br />
<b style="font-size: x-large;">Reason #1: It's the law in Ontario to have a lawyer represent you.</b><span style="font-size: large;"> It's not a scam by lawyers to make business for themselves. The law of Ontario requires that every buyer and every seller of real estate be represented by their own lawyers (unless the area is remote, where one lawyer might be able to do both sides of the deal). It's true that lawyers aren’t required to be involved in every real estate transaction in a lot of other jurisdictions. But if you consider that real estate is likely the most expensive thing you'll ever buy in your life, unless you're really into rare luxury cars or mega yachts, then the fact that you'll be paying a fraction of a single percent of the purchase price in legal fees seems sensible if it protects your investment. Believe it or not, lawyer do stuff on a real estate deal beyond print out a lot of paper that you're required to sign.</span><span style="font-size: large;"><br /></span><br />
<div>
<b><span style="font-size: large;"><br /></span></b></div>
<div>
<b style="font-size: x-large;">Reason #2: There may be legal problems with the title to the property.</b><span style="font-size: large;"> Most people now hire home inspectors to check out their dream residence for fatal building flaws. Your lawyer is there to help minimize nasty surprises over fatal legal flaws. Like that there's a registered right of way for an oil pipeline through your backyard. Or that half the garage that comes with the property is actually located over the neighbour's lot line. Or that two liens for non-payment of large debts are registered against the property.</span></div>
<div>
<b><span style="font-size: large;"><br /></span></b></div>
<div>
<span style="font-size: large;"><b>Reason #3: You need to borrow money to buy the property. </b>Very few of us are able to pay cash for real estate, unless we're buying bare land or a really run down house in a very cheap location. But anyone lending you a large sum of money to buy a property is going to want to register a mortgage against the property to secure the debt. And placing a mortgage on a property requires a lawyer, in part to make sure there aren't other priority claims already registered against the property in which case your lender might not be willing to lend, or might only lend at a much higher rate of interest if it doesn't get first priority against the property. </span></div>
<ol class="ol1">
</ol>
Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com187tag:blogger.com,1999:blog-6261601516039322262.post-55822777568601516492016-07-19T09:20:00.000-07:002016-07-19T10:26:02.021-07:00FIVE THINGS TO NEVER DO IF YOU WANT TO SUCCESSFULLY APPEAL A DECISION THAT SUCKS<!--[if gte mso 9]><xml>
<o:OfficeDocumentSettings>
<o:AllowPNG/>
<o:PixelsPerInch>96</o:PixelsPerInch>
</o:OfficeDocumentSettings>
</xml><![endif]-->
<!--[if gte mso 9]><xml>
<w:WordDocument>
<w:View>Normal</w:View>
<w:Zoom>0</w:Zoom>
<w:TrackMoves/>
<w:TrackFormatting/>
<w:PunctuationKerning/>
<w:ValidateAgainstSchemas/>
<w:SaveIfXMLInvalid>false</w:SaveIfXMLInvalid>
<w:IgnoreMixedContent>false</w:IgnoreMixedContent>
<w:AlwaysShowPlaceholderText>false</w:AlwaysShowPlaceholderText>
<w:DoNotPromoteQF/>
<w:LidThemeOther>EN-US</w:LidThemeOther>
<w:LidThemeAsian>X-NONE</w:LidThemeAsian>
<w:LidThemeComplexScript>X-NONE</w:LidThemeComplexScript>
<w:Compatibility>
<w:BreakWrappedTables/>
<w:SnapToGridInCell/>
<w:WrapTextWithPunct/>
<w:UseAsianBreakRules/>
<w:DontGrowAutofit/>
<w:SplitPgBreakAndParaMark/>
<w:EnableOpenTypeKerning/>
<w:DontFlipMirrorIndents/>
<w:OverrideTableStyleHps/>
</w:Compatibility>
<m:mathPr>
<m:mathFont m:val="Cambria Math"/>
<m:brkBin m:val="before"/>
<m:brkBinSub m:val="--"/>
<m:smallFrac m:val="off"/>
<m:dispDef/>
<m:lMargin m:val="0"/>
<m:rMargin m:val="0"/>
<m:defJc m:val="centerGroup"/>
<m:wrapIndent m:val="1440"/>
<m:intLim m:val="subSup"/>
<m:naryLim m:val="undOvr"/>
</m:mathPr></w:WordDocument>
</xml><![endif]--><!--[if gte mso 9]><xml>
<w:LatentStyles DefLockedState="false" DefUnhideWhenUsed="false"
DefSemiHidden="false" DefQFormat="false" DefPriority="99"
LatentStyleCount="380">
<w:LsdException Locked="false" Priority="0" QFormat="true" Name="Normal"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 1"/>
<w:LsdException Locked="false" Priority="9" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="heading 2"/>
<w:LsdException Locked="false" Priority="9" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="heading 3"/>
<w:LsdException Locked="false" Priority="9" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="heading 4"/>
<w:LsdException Locked="false" Priority="9" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="heading 5"/>
<w:LsdException Locked="false" Priority="9" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="heading 6"/>
<w:LsdException Locked="false" Priority="9" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="heading 7"/>
<w:LsdException Locked="false" Priority="9" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="heading 8"/>
<w:LsdException Locked="false" Priority="9" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="heading 9"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="index 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="index 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="index 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="index 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="index 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="index 6"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="index 7"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="index 8"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="index 9"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" Name="toc 1"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" Name="toc 2"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" Name="toc 3"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" Name="toc 4"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" Name="toc 5"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" Name="toc 6"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" Name="toc 7"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" Name="toc 8"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" Name="toc 9"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Normal Indent"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="footnote text"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="annotation text"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="header"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="footer"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="index heading"/>
<w:LsdException Locked="false" Priority="35" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="caption"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="table of figures"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="envelope address"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="envelope return"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="footnote reference"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="annotation reference"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="line number"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="page number"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="endnote reference"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="endnote text"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="table of authorities"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="macro"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="toa heading"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Bullet"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Number"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Bullet 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Bullet 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Bullet 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Bullet 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Number 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Number 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Number 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Number 5"/>
<w:LsdException Locked="false" Priority="10" QFormat="true" Name="Title"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Closing"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Signature"/>
<w:LsdException Locked="false" Priority="1" SemiHidden="true"
UnhideWhenUsed="true" Name="Default Paragraph Font"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text Indent"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Continue"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Continue 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Continue 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Continue 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="List Continue 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Message Header"/>
<w:LsdException Locked="false" Priority="11" QFormat="true" Name="Subtitle"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Salutation"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Date"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text First Indent"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text First Indent 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Heading"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text Indent 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Body Text Indent 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Block Text"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Hyperlink"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="FollowedHyperlink"/>
<w:LsdException Locked="false" Priority="22" QFormat="true" Name="Strong"/>
<w:LsdException Locked="false" Priority="20" QFormat="true" Name="Emphasis"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Document Map"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Plain Text"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="E-mail Signature"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Top of Form"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Bottom of Form"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Normal (Web)"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Acronym"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Address"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Cite"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Code"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Definition"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Keyboard"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Preformatted"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Sample"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Typewriter"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="HTML Variable"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Normal Table"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="annotation subject"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="No List"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Outline List 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Outline List 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Outline List 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Simple 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Simple 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Simple 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Classic 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Classic 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Classic 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Classic 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Colorful 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Colorful 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Colorful 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Columns 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Columns 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Columns 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Columns 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Columns 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 6"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 7"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Grid 8"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 6"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 7"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table List 8"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table 3D effects 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table 3D effects 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table 3D effects 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Contemporary"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Elegant"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Professional"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Subtle 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Subtle 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Web 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Web 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Web 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Balloon Text"/>
<w:LsdException Locked="false" Priority="39" Name="Table Grid"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Table Theme"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Level 1"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Level 2"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Level 3"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Level 4"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Level 5"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Level 6"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Level 7"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Level 8"/>
<w:LsdException Locked="false" SemiHidden="true" UnhideWhenUsed="true"
Name="Note Level 9"/>
<w:LsdException Locked="false" SemiHidden="true" Name="Placeholder Text"/>
<w:LsdException Locked="false" Priority="1" QFormat="true" Name="No Spacing"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading"/>
<w:LsdException Locked="false" Priority="61" Name="Light List"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 1"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 1"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 1"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 1"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 1"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 1"/>
<w:LsdException Locked="false" SemiHidden="true" Name="Revision"/>
<w:LsdException Locked="false" Priority="34" QFormat="true"
Name="List Paragraph"/>
<w:LsdException Locked="false" Priority="29" QFormat="true" Name="Quote"/>
<w:LsdException Locked="false" Priority="30" QFormat="true"
Name="Intense Quote"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 1"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 1"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 1"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 1"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 1"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 1"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 1"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 1"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 2"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 2"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 2"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 2"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 2"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 2"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 2"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 2"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 2"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 2"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 2"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 2"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 2"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 2"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 3"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 3"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 3"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 3"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 3"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 3"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 3"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 3"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 3"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 3"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 3"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 3"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 3"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 3"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 4"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 4"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 4"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 4"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 4"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 4"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 4"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 4"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 4"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 4"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 4"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 4"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 4"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 4"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 5"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 5"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 5"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 5"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 5"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 5"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 5"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 5"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 5"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 5"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 5"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 5"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 5"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 5"/>
<w:LsdException Locked="false" Priority="60" Name="Light Shading Accent 6"/>
<w:LsdException Locked="false" Priority="61" Name="Light List Accent 6"/>
<w:LsdException Locked="false" Priority="62" Name="Light Grid Accent 6"/>
<w:LsdException Locked="false" Priority="63" Name="Medium Shading 1 Accent 6"/>
<w:LsdException Locked="false" Priority="64" Name="Medium Shading 2 Accent 6"/>
<w:LsdException Locked="false" Priority="65" Name="Medium List 1 Accent 6"/>
<w:LsdException Locked="false" Priority="66" Name="Medium List 2 Accent 6"/>
<w:LsdException Locked="false" Priority="67" Name="Medium Grid 1 Accent 6"/>
<w:LsdException Locked="false" Priority="68" Name="Medium Grid 2 Accent 6"/>
<w:LsdException Locked="false" Priority="69" Name="Medium Grid 3 Accent 6"/>
<w:LsdException Locked="false" Priority="70" Name="Dark List Accent 6"/>
<w:LsdException Locked="false" Priority="71" Name="Colorful Shading Accent 6"/>
<w:LsdException Locked="false" Priority="72" Name="Colorful List Accent 6"/>
<w:LsdException Locked="false" Priority="73" Name="Colorful Grid Accent 6"/>
<w:LsdException Locked="false" Priority="19" QFormat="true"
Name="Subtle Emphasis"/>
<w:LsdException Locked="false" Priority="21" QFormat="true"
Name="Intense Emphasis"/>
<w:LsdException Locked="false" Priority="31" QFormat="true"
Name="Subtle Reference"/>
<w:LsdException Locked="false" Priority="32" QFormat="true"
Name="Intense Reference"/>
<w:LsdException Locked="false" Priority="33" QFormat="true" Name="Book Title"/>
<w:LsdException Locked="false" Priority="37" SemiHidden="true"
UnhideWhenUsed="true" Name="Bibliography"/>
<w:LsdException Locked="false" Priority="39" SemiHidden="true"
UnhideWhenUsed="true" QFormat="true" Name="TOC Heading"/>
<w:LsdException Locked="false" Priority="41" Name="Plain Table 1"/>
<w:LsdException Locked="false" Priority="42" Name="Plain Table 2"/>
<w:LsdException Locked="false" Priority="43" Name="Plain Table 3"/>
<w:LsdException Locked="false" Priority="44" Name="Plain Table 4"/>
<w:LsdException Locked="false" Priority="45" Name="Plain Table 5"/>
<w:LsdException Locked="false" Priority="40" Name="Grid Table Light"/>
<w:LsdException Locked="false" Priority="46" Name="Grid Table 1 Light"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark"/>
<w:LsdException Locked="false" Priority="51" Name="Grid Table 6 Colorful"/>
<w:LsdException Locked="false" Priority="52" Name="Grid Table 7 Colorful"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 1"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 1"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 1"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 1"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 1"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 1"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 1"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 2"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 2"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 2"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 2"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 2"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 2"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 2"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 3"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 3"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 3"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 3"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 3"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 3"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 3"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 4"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 4"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 4"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 4"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 4"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 4"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 4"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 5"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 5"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 5"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 5"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 5"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 5"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 5"/>
<w:LsdException Locked="false" Priority="46"
Name="Grid Table 1 Light Accent 6"/>
<w:LsdException Locked="false" Priority="47" Name="Grid Table 2 Accent 6"/>
<w:LsdException Locked="false" Priority="48" Name="Grid Table 3 Accent 6"/>
<w:LsdException Locked="false" Priority="49" Name="Grid Table 4 Accent 6"/>
<w:LsdException Locked="false" Priority="50" Name="Grid Table 5 Dark Accent 6"/>
<w:LsdException Locked="false" Priority="51"
Name="Grid Table 6 Colorful Accent 6"/>
<w:LsdException Locked="false" Priority="52"
Name="Grid Table 7 Colorful Accent 6"/>
<w:LsdException Locked="false" Priority="46" Name="List Table 1 Light"/>
<w:LsdException Locked="false" Priority="47" Name="List Table 2"/>
<w:LsdException Locked="false" Priority="48" Name="List Table 3"/>
<w:LsdException Locked="false" Priority="49" Name="List Table 4"/>
<w:LsdException Locked="false" Priority="50" Name="List Table 5 Dark"/>
<w:LsdException Locked="false" Priority="51" Name="List Table 6 Colorful"/>
<w:LsdException Locked="false" Priority="52" Name="List Table 7 Colorful"/>
<w:LsdException Locked="false" Priority="46"
Name="List Table 1 Light Accent 1"/>
<w:LsdException Locked="false" Priority="47" Name="List Table 2 Accent 1"/>
<w:LsdException Locked="false" Priority="48" Name="List Table 3 Accent 1"/>
<w:LsdException Locked="false" Priority="49" Name="List Table 4 Accent 1"/>
<w:LsdException Locked="false" Priority="50" Name="List Table 5 Dark Accent 1"/>
<w:LsdException Locked="false" Priority="51"
Name="List Table 6 Colorful Accent 1"/>
<w:LsdException Locked="false" Priority="52"
Name="List Table 7 Colorful Accent 1"/>
<w:LsdException Locked="false" Priority="46"
Name="List Table 1 Light Accent 2"/>
<w:LsdException Locked="false" Priority="47" Name="List Table 2 Accent 2"/>
<w:LsdException Locked="false" Priority="48" Name="List Table 3 Accent 2"/>
<w:LsdException Locked="false" Priority="49" Name="List Table 4 Accent 2"/>
<w:LsdException Locked="false" Priority="50" Name="List Table 5 Dark Accent 2"/>
<w:LsdException Locked="false" Priority="51"
Name="List Table 6 Colorful Accent 2"/>
<w:LsdException Locked="false" Priority="52"
Name="List Table 7 Colorful Accent 2"/>
<w:LsdException Locked="false" Priority="46"
Name="List Table 1 Light Accent 3"/>
<w:LsdException Locked="false" Priority="47" Name="List Table 2 Accent 3"/>
<w:LsdException Locked="false" Priority="48" Name="List Table 3 Accent 3"/>
<w:LsdException Locked="false" Priority="49" Name="List Table 4 Accent 3"/>
<w:LsdException Locked="false" Priority="50" Name="List Table 5 Dark Accent 3"/>
<w:LsdException Locked="false" Priority="51"
Name="List Table 6 Colorful Accent 3"/>
<w:LsdException Locked="false" Priority="52"
Name="List Table 7 Colorful Accent 3"/>
<w:LsdException Locked="false" Priority="46"
Name="List Table 1 Light Accent 4"/>
<w:LsdException Locked="false" Priority="47" Name="List Table 2 Accent 4"/>
<w:LsdException Locked="false" Priority="48" Name="List Table 3 Accent 4"/>
<w:LsdException Locked="false" Priority="49" Name="List Table 4 Accent 4"/>
<w:LsdException Locked="false" Priority="50" Name="List Table 5 Dark Accent 4"/>
<w:LsdException Locked="false" Priority="51"
Name="List Table 6 Colorful Accent 4"/>
<w:LsdException Locked="false" Priority="52"
Name="List Table 7 Colorful Accent 4"/>
<w:LsdException Locked="false" Priority="46"
Name="List Table 1 Light Accent 5"/>
<w:LsdException Locked="false" Priority="47" Name="List Table 2 Accent 5"/>
<w:LsdException Locked="false" Priority="48" Name="List Table 3 Accent 5"/>
<w:LsdException Locked="false" Priority="49" Name="List Table 4 Accent 5"/>
<w:LsdException Locked="false" Priority="50" Name="List Table 5 Dark Accent 5"/>
<w:LsdException Locked="false" Priority="51"
Name="List Table 6 Colorful Accent 5"/>
<w:LsdException Locked="false" Priority="52"
Name="List Table 7 Colorful Accent 5"/>
<w:LsdException Locked="false" Priority="46"
Name="List Table 1 Light Accent 6"/>
<w:LsdException Locked="false" Priority="47" Name="List Table 2 Accent 6"/>
<w:LsdException Locked="false" Priority="48" Name="List Table 3 Accent 6"/>
<w:LsdException Locked="false" Priority="49" Name="List Table 4 Accent 6"/>
<w:LsdException Locked="false" Priority="50" Name="List Table 5 Dark Accent 6"/>
<w:LsdException Locked="false" Priority="51"
Name="List Table 6 Colorful Accent 6"/>
<w:LsdException Locked="false" Priority="52"
Name="List Table 7 Colorful Accent 6"/>
</w:LatentStyles>
</xml><![endif]-->
<!--[if gte mso 10]>
<style>
/* Style Definitions */
table.MsoNormalTable
{mso-style-name:"Table Normal";
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-priority:99;
mso-style-parent:"";
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:12.0pt;
font-family:Calibri;
mso-ascii-font-family:Calibri;
mso-ascii-theme-font:minor-latin;
mso-hansi-font-family:Calibri;
mso-hansi-theme-font:minor-latin;}
</style>
<![endif]-->
<!--StartFragment-->
<br />
<div class="MsoNormal">
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="color: black; font-family: "times new roman";"><span style="font-size: large;">There comes a time in all our lives when we receive some kind of official pronouncement that we disagree with. Being rejected for a licence or permit. Being told that we don’t have the rights we thought we had. Losing in a civil money dispute, in family court, or even at a trial for a criminal or regulatory offence.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="color: black; font-family: "times new roman";"><span style="font-size: large;">We might find the result hurtful and unjust. We might be outraged. And we might remain firm in our convictions over the justness of our cause!<o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="color: black; font-family: "times new roman";"><span style="font-size: large;">Some will just swallow the defeat and move on. But others will want to continue the fight.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="color: black; font-family: "times new roman";"><span style="font-size: large;">Most of the world’s legal systems have created fairness check mechanisms on first level decisions, regardless of who is making the decision or what subject the decision relates to. The buck almost never stops with the government desk officer, the hearing tribunal, or the trial judge. At least one level of appeal of an adverse decision is almost always possible if you look hard enough for an appeal route. <o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="color: black; font-family: "times new roman";"><span style="font-size: large;">A psychologist could probably give you a helpful take on the emotional toll that fighting on entails, and what kind of person is more likely to continue to fight rather than throw in the towel. But my professional focus is solely on whether and how the continued fight can be won. <o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="color: black; font-family: "times new roman";"><span style="font-size: large;">In the over two decades I’ve been helping clients with appeals (and watching others by necessity or choice represent themselves), I’ve seen lots of missed opportunities for winning appeals because of deadly but completely avoidable mistakes that people make shortly after receiving that decision they want desperately to overturn. Here are a Canadian appellate lawyer’s insider tips for five things you should never do (and I frequently see done again and again) if you want to continue the good fight, which should help you out regardless of where you live. <o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="font-size: large;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-family: "times new roman";">1. BE LATE TO THE PARTY. </span></b><span style="color: black; font-family: "times new roman";">It doesn't matter how great your arguments might be; if you're late on an appeal, you're almost always out of luck. And some appeal filing periods can be crazy short. Like 7 days from the decision. Usually you've got 30 days; occasionally as long as 90 days. In that time, you’ll need to find a lawyer (or figure out the process yourself), get a copy of the decision and the materials that were reviewed in making it (you might need to order transcripts or request government records), draft plausible grounds for appeal, track down the responding party to serve the appeal notice on, and file the notice with the office, tribunal or court hearing the appeal. <o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="font-size: large;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-family: "times new roman";">2. GET LOST FINDING THE PARTY.</span></b><span style="color: black; font-family: "times new roman";"> There are more places out there to appeal to than you might expect. In federations like Canada or the U.S., you need to figure out if you’re going to a provincial, state or federal appeal body. You might also need to determine if you’ve got a final order or interlocutory (interim) order, as believe it or not their respective appeals might go to different places. After being late, appealing to the wrong place is probably the most common completely avoidable reason for failed appeals. I’ve seen enough lawyers get the appeal route wrong. Sometimes, even the courts themselves disagree over which one of them should be hearing an appeal!<o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="font-size: large;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-family: "times new roman";">3. THINK IT'S SIMPLY ANOTHER KICK AT THE SAME CAN. </span></b><span style="color: black; font-family: "times new roman";">The time to make your best pitch is with the first instance official, tribunal or court. Appeal bodies love the word “deference” to lower officials, and will liberally use that word against you if you don’t give them very good reasons why they should overturn a lower decision. You can’t usually appeal errors of fact, only errors of law (though it’s possible to turn big enough factual errors into errors of law). So it’s deadly to try to appeal on the basis that you think a decision is merely wrong, stupid, or misguided. Even if the person you’re appealing to is inclined to agree with you, she can’t simply substitute her own decision for the decision of the lower official. There has to be some kind of significant legal error you point out that is worth interfering with. <o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="font-size: large;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-family: "times new roman";">4. ASSUME YOU'VE GOT AN EVEN SHOT. </span></b><span style="color: black; font-family: "times new roman";">Casino gamblers and appeal gamblers both sometimes suffer from magical thinking on odds not rooted in reality. And while its easy to get stats on roulette with a double zero having a 5.26% house edge, it’s a lot more difficult to pin down precise odds on appeals. They’re definitely less than 50-50. Your best shot at winning is always at first instance - when you originally submit that government form or appear before that tribunal or trial court - not on appeal. In Canada, the odds of getting some kind of remedy out of an appeal are probably somewhere between 1 in 3 and 1 in 4, based on available appellate court data. If the stakes are high, those aren't such bad odds. But if you're fighting about a minor issue, you need to reflect on whether the financial and emotional cost is really worth it. <o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="font-size: large;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-family: "times new roman";">5. ONLY MAKE ONE ARGUMENT. </span></b><span style="color: black; font-family: "times new roman";">You might think you've found that one killer, slam dunk argument for an appeal. The one that no one could reject. But not everyone sees the world as you do. So even if a reviewer has sympathy for your cause, she may not buy your one argument wonder. Come up with more. I often come up with a dozen or more possibly viable grounds of appeal for clients. Sometimes we whittle that number down a bit for the actual appeal argument, but which of those arguments appeal officers and judges seize on as the winning strong argument continues to surprise me, so it never pays to limit your arguments other than eliminating the ones that stand no chance of success. <o:p></o:p></span></span></div>
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<br /></div>
<br />
<div class="MsoNormal" style="mso-layout-grid-align: none; mso-pagination: none; text-autospace: none;">
<span style="color: black; font-family: "times new roman";"><span style="font-size: large;">To read more, see <a href="http://www.appealslawyer.info/appeals-blog/"><span style="color: #784fbf; text-decoration: none;">my appeals law blog</span></a>. </span></span></div>
</div>
<!--EndFragment-->Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com2tag:blogger.com,1999:blog-6261601516039322262.post-60694876780835953412016-07-04T12:04:00.000-07:002016-07-04T12:22:26.588-07:00SIX TIPS TO RESOLVE NEIGHBOUR DISPUTES<h3 class="post-title entry-title" itemprop="name" style="background-color: white; color: #222222; font-family: Cambria; font-size: 22px; font-stretch: normal; font-weight: normal; margin: 0.75em 0px 0px; position: relative;">
</h3>
<div class="post-header" style="background-color: white; color: #222222; font-family: Arial, Tahoma, Helvetica, FreeSans, sans-serif; font-size: 10.8px; line-height: 1.6; margin: 0px 0px 1.5em;">
<div class="post-header-line-1">
</div>
</div>
<div class="post-body entry-content" id="post-body-129177445164510847" itemprop="description articleBody" style="background-color: white; color: #222222; position: relative; width: 650px;">
<span style="font-family: "arial" , "tahoma" , "helvetica" , "freesans" , sans-serif; font-size: 13.2px; line-height: 1.4;"><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; border: 1px solid rgb(238, 238, 238); box-shadow: rgba(0, 0, 0, 0.0980392) 1px 1px 5px; color: #222222; margin-left: auto; margin-right: auto; padding: 5px; position: relative; text-align: center;"><tbody>
<tr><td><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiR6gpl6rB1KTORqTNqiKf_FQDQsxeVXptNIZGLeOXopbU2o7TtQSATpR7BVD0AqWGLeBnUGFG6-W7oBiLCKs4qtVO1xOuWu3c-B3N2Kg9qE9Ie4_DJKtbKoQqqG4mp1pZR55FxXfMcAsk/s1600/Neighbors_(2013)_Poster.jpg" imageanchor="1" style="color: #888888; margin-left: auto; margin-right: auto; text-decoration: none;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiR6gpl6rB1KTORqTNqiKf_FQDQsxeVXptNIZGLeOXopbU2o7TtQSATpR7BVD0AqWGLeBnUGFG6-W7oBiLCKs4qtVO1xOuWu3c-B3N2Kg9qE9Ie4_DJKtbKoQqqG4mp1pZR55FxXfMcAsk/s1600/Neighbors_(2013)_Poster.jpg" style="background: transparent; border: none; box-shadow: rgba(0, 0, 0, 0.0980392) 0px 0px 0px; padding: 0px; position: relative;" width="263" /></a></td></tr>
<tr><td class="tr-caption" style="font-size: 10.56px;">Credit: "Neighbors (2013) Poster" by Source. Licensed under Fair use via Wikipedia</td></tr>
</tbody></table>
</span><span style="font-family: "times" , "times new roman" , serif;"><span style="font-size: large; line-height: 18.48px;"><br /></span></span></div>
<div class="post-body entry-content" id="post-body-129177445164510847" itemprop="description articleBody" style="background-color: white; color: #222222; position: relative; width: 650px;">
<span style="font-family: "times" , "times new roman" , serif;"><span style="font-size: large; line-height: 18.48px;">I</span><span style="font-size: large; line-height: 1.4;">f you go by the number of court cases I'm involved in helping folks defend themselves against neighbour actions or lawsuits over fences and shrubberies, you'll realize that the old adage "good fences make good neighbours" is patently false. I've got lots of examples of neighbours taking great offence when one neighbour decides to legally erect a fence along (but usually not even resting on) property lines. Other cases arise when a neighbour decides to trim a tree overhanging her property, or move a couple of shrubberies, or exercise a longstanding right of way over a neighbour's property to get to her own landlocked property.<br /><br />In a perfect world, any of these actions would involve neighbours calmly and politely talking out their concerns, and not having to resort to hiring me to go to court for them. But of course we don't live in that mythical perfect world. People hold grudges and nurse petty grievances. People act unreasonably, even when their actions and reactions aren't logical and aren't in their own financial and human relationship best interests.<br /><br />You might think people would carefully consider whether spending $10,000 (or even $40,000) fighting over a shrubbery, and in the process totally poisoning a relationship with a neighbour whose help you might actually need in the future, was really worth it. But we all know that hearts rule rather than heads, and that emotions get the better of people time and time again, even when what they are doing really makes no sense.<br /><br />And even if sense does later enter into the equation, once they are $10,000 down the legal litigation superhighway, it can be very difficult to put the brakes on that Litigious Lexus. Far easier to keep the pedal to the metal, and burn through another $10,000 in lawyer gas, and then another $10,000.<br /><br />I'm happy to say my clients don't start frivolous litigation, or take ridiculous actions against their neighbours. I'm not speaking as someone with blinders on. Rather, I just seem to attract those who are getting the short end of the stick. And I refuse to represent anyone who won't listen to at least some reason, because they won't be clients whom I can help. They're still entitled to legal representation, I just don't have to be the one providing it.<br /><br />So what's to be done when you're on the receiving end of a property neighbour legal dispute in order to minimize cost and hassle?<br /><br /><b>1. Try to deescalate the dispute before it gets to court. </b>I know this is easier said than done, but many believe court will offer a quick and inexpensive or at least definitive fix to the problem, and usually none of those assumptions are correct. Disputes can drag for years in court, at huge cost, and then the court might not even offer a ruling on all the issues in dispute.<br /><br /><b>2. Try to keep the dispute in Small Claims Court,</b> where your legal fees will be much lower because the process is much quicker. Unfortunately, Small Claims Court won't determine questions of rights in land itself. It only determines questions of money owed - such as from cutting down a prized tree that the neighbour didn't have the right to cut.<br /><br /><b>3. Don't try to represent yourself in court on the dispute.</b> I'm not making this suggestion from the perspective of a lawyer who earns his living from clients who hire me to go to court for them, but rather as a person who sees countless courtroom disasters caused by smart people trying to navigate the highly complex legal system by themselves. No one tries to do open heart surgery by themselves. No one with any sense even tries to set a broken bone by themselves. So why try to do the legal equivalent by yourself? The patient is going to die, or at least wind up far sicker than he was before the start of treatment.<br /><br /><b>4. Keep scrupulous records of all events and interactions with the neighbour and authorities over the issue. </b>Recording names, dates, places and detailed descriptions, including taking photos (and maybe video) are needed. These records will be key to ensuring your evidence of your side of the story is believed in court.<br /><br /><b>5. Be constantly considering what a reasonable settlement offer would look like right from the start. </b>"Reasonable" means not just to you, but to the neighbour. What's going to be attractive to the neighbour, but still get you at least some of what you want? Because you really, really want to avoid going to court in such matters, and really want to shorten as much as possible the time such a dispute spends dragging through court.</span></span><br />
<span style="font-family: "times" , "times new roman" , serif;"><span style="font-size: large; line-height: 1.4;"><br /></span></span>
<span style="font-family: "times" , "times new roman" , serif;"><span style="font-size: large; line-height: 1.4;"><b>6. Check if you bought a title insurance policy when acquiring your property, and considering making a claim on it. </b>Title insurance was only being introduced into Ontario when I started practicing law, and remains a newer product that most people now purchase (because of the relatively low cost) but don't always think about when neighbour disputes arise. The coverage of these policies vary greatly, so it's important to speak to your lawyer and the title insurer about what may or may not be covered. <a href="http://www.stewart.ca/" target="_blank">Stewart Title</a> and <a href="https://www.fct.ca/" target="_blank">First Canadian Title</a> are likely the two largest issuers of such policies in Ontario. </span></span></div>
Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com0tag:blogger.com,1999:blog-6261601516039322262.post-41475876320748471592016-05-30T15:56:00.001-07:002016-05-30T15:56:42.256-07:00FOUR INSIDER TIPS TO SURVIVING A DRUG CHARGE IN CANADA<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Although the media is full of talk about the imminent legalization of the possession of small amounts of marihuana in Canada, the reality is that we may still be at least a couple of years away from legislation coming into force, that growing or selling your own marihuana will probably remain offences, and that courts will continue to be clogged with those accused of possessing, selling, producing or importing a host other recreational pharmaceuticals. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Being investigated, charged or going through the court process for a drug offence can be a very stressful life event. </span><span style="font-family: Times, 'Times New Roman', serif; font-size: large;">I served for many years as a Federal Crown drug prosecutor, and now defend those being investigated for or charged with drug offences. I've trained the police on how to properly draft and execute drug search warrants and wiretaps, make drug-related arrests and take statements from those implicated in drug offence. I've even published a series of books called </span><i style="font-family: Times, 'Times New Roman', serif; font-size: x-large;"><a href="http://www.carswell.com/product-detail/the-investigators-legal-handbook-second-edition/" target="_blank">The Investigator's Legal Handbook</a> </i><span style="font-family: Times, 'Times New Roman', serif; font-size: large;">related to these issues.</span><span style="font-family: Times, 'Times New Roman', serif; font-size: large;"> Being well informed is your best defence to a drug charge. Here I give you the four tips you need to follow to survive a drug charge or investigation. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>Tip 1 - Say Nothing other than Identifying Yourself</b></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Don't say anything to the police, other than giving them your correct name. And if you're driving, you're going to need to produce a driver's licence, vehicle insurance and registration documents.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Don't try to talk your way out of the situation. Don't deny anything. Don't admit to anything. Don't agree to let the police search anywhere. But follow their directions and be polite to them.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Whatever you say will be used against you later. Even if you deny everything, that could later be used against you. Trust me. I've seen it all before.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Regardless of whether you're walking along the street, driving in a vehicle, or sitting at home watching television, when the police come knocking, say nothing. </span><span style="font-family: Times, 'Times New Roman', serif; font-size: large;">Follow this tip, and the police will only be left with evidence of what they find or don't find. What others say or don't say about you usually doesn't count for anything in a criminal court drug trial, unless it's a police agent or police officer who is testifying. But what you personally have told the police counts for a lot. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Don't think even if the police aren't making a recording of what you're saying, or aren't writing it down in a little black notebook, that it can't later be used against you. Say nothing. That's your right, so take full advantage of that right.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">However, don't try to obstruct the police in doing their jobs. </span><span style="font-family: Times, 'Times New Roman', serif; font-size: large;">If they've got a warrant to search your house, let them get on with their job of searching. Let your lawyer later figure out if it was a valid or invalid warrant. But you don't need to point anything out to the police. Resist identifying items for the police, even if the police tell you that will save on their messing up your house. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Same thing in a vehicle - no need to hand anything over. If they're going to search your vehicle, they will search. Nothing you say or don't say will change things, as tempting as it might be to say something.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Likewise if you're walking down the street. Don't become trapped by the "have you got anything on you that you shouldn't have?" question. And its companion request: "if you do, hand it over." Many of my clients assume that by being cooperative, the police will just let the matter drop and send them on their way. But often what happens is that they've dug themselves into a self-incrimination hole and get charged with drug offences. Whereas if they had said and done nothing (other than giving their names), the police may have had no legal authority to search. </span></div>
<div>
</div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>Tip 2 - Talk to a Lawyer ASAP</b></span></div>
<div>
<u><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></u></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">In some personal disputes, lawyering up early on only aggravates the dispute. But being criminally investigated or charged is a completely different situation. There, you'll want to consult a lawyer as soon as possible. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">A little bit of legal advice can be a bargain in protecting your rights. That advice might mean a police investigation goes nowhere, that less serious charges are laid - for instance possession instead of possession for the purpose of trafficking - or if a court case does proceed that you haven't helped the police make the case against you.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">You shouldn't wait to talk to a lawyer until you've been charged. Some drug investigations take a while, and there may be things you can do to protect your rights at an early stage of the investigation. Your lawyer might talk to the police for you to ask about the scope of their inquiries. Your lawyer might be able to work out a deal for you to avoid you getting charged with anything. Your lawyer might be able to get some charges dropped. Or your lawyer might go to court for you to get back seized money or other assets. </span></div>
<div>
</div>
<div>
<br /></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>Tip 3 - Be Personally Informed About Drug Laws</b></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Informing yourself in a basic sense about drug laws is the best way you can make intelligent decisions about your legal defence. There's a lot of clutter - like hundreds of years of the common law of evidence and dozens of years of constitutional rights law - that makes it seem really complicated, and for which you definitely need a lawyer. But I can sum up the basics for you quickly.</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">There are principally 5 types of drug offences (all under what's wordily known as the <i>Controlled Drug and Substances Act</i>): possession, possession for the purpose of trafficking, trafficking, production, and importation. The type of drug involved might make the penalties for any of these offences more severe, but mostly don't alter their inherent character. "Conviction" for any of them will gives you a criminal record, and could cause you a lifetime of hassles crossing the U.S. border and applying for jobs within Canada until you are able to obtain a pardon (now unpoetically called a "record suspension"). So you really, really, really want to avoid a conviction.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">There are three ways to do that.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">One, convince the Crown to drop the charges. Good defence lawyers are capable of doing this. It might not happen that often, but it's usually your best shot to make everything go away.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Two, plead guilty and convince a judge to give you what's known as a "discharge." It's a finding of guilt, but no conviction is entered. So if you're later asked by anyone, "have you ever been convicted of a criminal offence," you can truthfully say "no." Again, a good defence lawyer might be able to obtain this for you - but it will depend on the type of offence and type of drug you are pleading to.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Three, take your case to trial. You might have a viable defence, because the burden of proof beyond a reasonable doubt is entirely on the Crown. You have to prove nothing. The Crown has to prove knowledge and control and possibly other elements. You might even have a <i>Charter of Rights </i>defence if your rights were violated. There sometimes isn't much downside to taking a drug case to trial other than the legal fees if the sentence imposed after trial isn't much different than the sentence you would have received after a guilty plea. A good drug defence lawyer will not be afraid to take your case to trial so long as there is some viable defence to present.
</span></div>
<div>
<b><br /></b></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>TIP 4 - Don't Plead Guilty if You're Not Guilty</b></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">I often have clients stuck in the system. They're understandably stressed out by their drug charges hanging over their heads for months on end. They want the process over with. They have a good defence, but they can't take the waiting anymore. So they tell me, "look Gordon, I didn't do it, but I want to plead just to get it over with." But it's not ethical for any lawyer to help you with such a plea. Lying to the court is an offence. If you didn't do it, you just need to hang in there. You'll be stuck with a conviction for life, so ultimately waiting a year to have your trial day in court is worth it. Trust me, I'm a lawyer. </span></div>
<div>
<br /></div>
Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com11tag:blogger.com,1999:blog-6261601516039322262.post-39065528545455287312016-05-29T12:24:00.001-07:002016-05-29T12:24:11.938-07:004 LEGAL STEPS YOU NEED TO TAKE TO SURVIVE A NEIGHBOUR/LANDLORD PROPERTY DISPUTE<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">We're usually completely blind to who our neighbours will be, or who we'll be renting property from, until we've moved into a house or apartment or business premises. And by then, it's too late too avoid the neighbours or landlord from hell. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">There are 4 key legal steps you need to take to survive and thrive in a neighbour or landlord dispute over your property, regardless of whether you're an owner or renter. </span></div>
<div>
<br /></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>Step One - Don't Escalate Too Quickly</b></span></div>
<div>
<u><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></u></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">As tempting as it might be, don't escalate the dispute by involving lawyers too quickly. This is the opposite of what I'd suggest in some other legal dispute situations like being charged with an offence or being sued. The reason to control escalation to the greatest degree possible is that most property dispute cases can be resolved with a little common sense. This isn't the case with lots of other types of disputes.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Embrace the "good neighbour principle" that anything you do on your property shouldn't harm your neighbour/landlord and his property, and insist upon your neighbour/landlord according you the same respect. Don't cut down your half of a tree on your property if it will kill the remaining half tree on your neighbour's property. Don't build a wall that will completely block all light to your neighbour's property. Don't aim an exhaust chimney directly at your neighbour. Don't make so much noise, at all times of the day and night, so as to drive your neighbour crazy. Don't make massive modifications to your rented premises without talking first to your landlord about the changes.</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">You might need to do some of these things in moderation in order to make proper use of your property, but showing the greatest restraint possible, and talking to your neighbour/landlord first, is most likely to avoid you being dragged to court and incurring legal expenses. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">All these property owner/renter actions I've just mentioned have ultimately wound up in court. Some have spawned many court cases. But at the end of the day, judges have usually granted judgment in favour of the reasonable party and against the unreasonable party.</span></div>
<div>
</div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>Step Two - Hire a Lawyer Instead of Self-Help Revenge </b></span></div>
<div>
<u><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></u></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">If your neighbour or landlord refuses to act reasonably, after you've tried to reason with him or her, then it's time to talk to a lawyer so you can better know your rights, and perhaps have your lawyer talk to your neighbour or landlord's lawyer.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">This is NOT the time to engage in self-help, and get revenge against the unreasonable person. You won't be doing yourself any favours if the matter later winds up in court through your acts of self-help revenge - even if they feel very good at the time.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">So cutting down your neighbour's tree after he cut down your tree, flooding your neighbour after she flooded you, breaking into your rented premises after your landlord locked out all need to be resisted. Instead, hire a lawyer and sort it out through negotiation or in court. That's the only way to get a permanent fix. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Your lawyer will tell you what you can permissibly do in the interim. The other way of self-help is a path to police involvement. And trust me, you don't want that. I've seen it often enough, and it ain't pretty. </span></div>
<div>
<b><br /></b></div>
<div>
<b><br /></b></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>Step 3 - Document, Document, Document</b></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Property disputes are a whole lot more tangible than other kinds of disputes. You can touch property. You can feel the earth being fought over beneath your feet. Touch the wall that your neighbour should never have built across your driveway. Smell the absence of that tree that should have never been cut down. Finger the padlock that should have never been placed on the front door of your business.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">As a result there are usually lots of documents and photos that you can create or gather to demonstrate to a court why you're in the right and your neighbour or landlord is in the wrong. Step 3 involves painstaking gathering of evidence. Avoid she said/she said competitions of credibility, and focus on absolute truths that you can prove through hard evidence.</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Take lots of photos - preferably before and after the start of the dispute. Pull out a survey or commission a new property boundary survey. Dust off those land title or lease documents, or have your lawyer conduct a diligent title search for you. Make some videos. Write out an extremely detailed chronology of events and give it to your lawyer - the more dates, names, places and details, the better. Collect witness statements. Your lawyer will probably want to draft up a sworn affidavit for you for later presentation to a court, attaching lots of exhibits, and will need lots of provable detail to create a compelling affidavit. </span></div>
<div>
<br /></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>STEP FOUR - Figure Out Your End Game Early</b></span></div>
<div>
<u><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></u></div>
<!--?xml version="1.0" encoding="UTF-8" standalone="no"?-->
<br />
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Think carefully early on in the dispute about your end game and what you will settle for out of the property dispute. Avoid demanding monetary damages if you're in court - they'll trap you into a lengthy trial of proving who owes who what, and how much is owed. You could be stuck in court for years, and the legal fees could outweigh any damages that are ever awarded. And then you might find collecting those damages to be impossible. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Ask yourself: what will best restore me to the position I should have been in? New trees? An adjusted property line? A quieter neighbour? A landlord who leaves me alone to run my business? Then work with your lawyer to figure out what legal means will get you to that point of resolution. </span></div>
Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com6tag:blogger.com,1999:blog-6261601516039322262.post-30035847514281384572016-05-27T07:08:00.000-07:002016-05-27T07:09:10.611-07:00FOUR STEPS TO SURVIVING WORKING WITH A BARRISTER IN CANADA<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Your life working with a barrister can be productive or it can be miserable. In this post I'll explain to you the four steps you need to follow to make the relationship the former and not the latter.</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">It doesn't matter if you're being dragged kicking and screaming to court in response to a criminal charge, small claims or Superior Court of Justice civil suit against you or your business, are trapped in family law proceedings, or maybe you need to initiate a court application to clarify your rights over real estate, or the interpretation of a will, or recover money from someone. Unless you're planning to do that case yourself - and in over two decades of practice I usually don't see good outcomes for those who try the DIY route - you'll be stuck working with a barrister.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">In Canada, barristers are simply lawyers who go to court. Unlike in England, they're part of the same law societies as solicitors. While we've never worn white horsehair wigs - I've heard they were too difficult to obtain in colonial times - we do sometimes wear black robes that have a habit of getting caught on door handles as we attempt to swish imperiously in and out of rooms.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>Step One - Be Sure You Need a Barrister</b></span></div>
<div>
<u><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></u></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Clarify at the start of the relationship why you need the barrister. Many people come to see me thinking they might benefit from a lawyer, but are not quite sure what the lawyer can do for them. I always tell my clients that a little legal advice can be a bargain. But going to court unless you absolutely have to go is never a bargain. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">So before you contact a barrister, consider why you need one. And then when you do speak to the barrister, explore upfront exactly how he or she might be able to help you.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Don't accept vague answers from a barrister about his or her plans to help you. Instead, push the barrister to explain step by step what his or her plan is for you. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">You might not really need a barrister. And it could be worth a free five minute phone call to find that out or a one hour paid consultation with a lawyer. Even if you pay up front for a bit of advice on your matter, possibly including asking the barrister to write you a formal legal opinion about the likely prospects of success of your case in court, it will still be way, way cheaper than starting to spend money on court fees once litigation has started.</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">You might need a psychologist or family therapist or credit counsellor or accountant more than a barrister. If you've got a neighbour dispute, you should weigh the expense of a real estate agent versus a barrister. Family counsellors for marriage troubles are definitely cheaper than family lawyers. I'm not suggesting other professionals can definitely fix your problems, but they might provide a more graceful exit to them than would litigation.</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">However, sometimes going to court will be the only option. Like if you've been charged with a criminal offence. Or if you are being sued by someone else. Or if you have a tax dispute with the government.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>Step Two - Clarify the True Cost of the Barrister</b></span></div>
<div>
<u><span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></u></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Demand up front from the barrister a fair assessment of fees for your matter, and in turn be prepared and realistic about your ability to fund those fees. Push the barrister for a block fee if possible, even if it's only for specific stages of a case, as that will best control and predict your costs. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">If fees need to be hourly, make the barrister explain why. And don't make the mistake of thinking a lower hourly rate will lead to a lower cost of the case, since a cheaper by the hour barrister might have less experience, and consequently wind up spending more time on your case. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Also don't be shocked by barrister fees. Many solicitors actually take home more money than barristers, but people usually don't complain about their seemingly "smaller" fees which are based on volume and where much of the work is being done by trained clerks. By comparison, barristers will be doing most of your work themselves, and court cases tend to suck up an enormous amount of lawyer time as compared to a simple real estate transaction which a lawyer might only personally spends one or two hours working on. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">If you can't afford the fees, tell that to the barrister upfront. There may be less expensive ways of proceeding available, even if they're not the preferred ways of proceeding. Don't mislead yourself about being able to afford a potentially very costly case because you think it will settle. You always need to plan for the worst case scenario when it comes to litigation.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Regardless of whether the fees are block or hourly, don't let the barrister be vague about how extras like "disbursements" can drive up those fees. Establish at the start if there are likely to be significant disbursements like transcript costs, expert witness fees, or printing and binding fees. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">A rule of thumb is that criminal cases tend to be cheaper than civil cases - even small claims - because they simply take up less barrister in-court and preparation time, settle at earlier stages, and involve fewer pre-trial proceedings. You'll usually be able to get a block fee from a barrister for a criminal case, but civil cases will usually be hourly because they're less predictable. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Costs of appeals for civil or criminal cases depend upon the complexity of the trial; a four week trial with 500 exhibits is going to cost more to appeal than a one day trail with five exhibits. But you may be able to get a block fee quote for an appeal - all the appeals I take on are done as block fees. </span></div>
</div>
<div>
</div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>Step Three - Work Collaboratively with the Barrister</b></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Press the barrister from the start of the relationship on what he or she needs from you. You giving the barrister appropriate help from the get go will make the relationship far more successful and cheaper for you. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Does the barrister want a factual chronology? A list of witnesses together with their addresses and phone numbers? Copies of possible court exhibits, including photos? You won't be able to anticipate all barrister needs, so ask. If you're having trouble getting direct answers on needs from the barrister, press the barrister's law clerks for what kinds of things they usually collect for cases. You need to work collaboratively with the barrister.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Your physical health is a collaborative endeavour with your family doctor. Same with you legal health.
</span></div>
</div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><span style="font-family: Helvetica Neue, Arial, Helvetica, sans-serif;">Don't make the mistake of thinking that your only obligation in working with a barrister is paying the bills. Really your barrister is more of an interpreter or negotiator or intermediary between you and the court; your barrister isn't your replacement or doppelgänger. Making</span><span style="font-family: 'Helvetica Neue', Arial, Helvetica, sans-serif;"> your barrister relationship the most result and cost effective possible requires your full participation in the case.</span></span></div>
</div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>Step Four - Continuously Evaluate What Would be an Acceptable End Result</b></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><span style="font-family: Helvetica Neue, Arial, Helvetica, sans-serif;">Evaluate in advance of retaining the barrister, and continuously reevaluate during the course of your barrister-client relationship, what would amount to an acceptable court result or end game for you. Don't enter the relationship with vague notions of "total victory" as even if your barrister gets you to that point, you might might be capable to recognizing it after you've been in the court process for a while. </span><span style="font-family: 'Helvetica Neue', Arial, Helvetica, sans-serif;">So be realistic in your court outcome expectations, and continually examine the options you're presented with for getting off the litigation treadmill. </span></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">In criminal cases, an acceptable result might be easier to evaluate than for civil cases. If you don't have a criminal record, and want to avoid one, a good result might be diversion or receiving a discharge, in addition to dropping of charges or an acquittal. If you do have a criminal record, but need to avoid going to jail so you can keep your job, then staying out of jail through a community based house arrest sentence might be acceptable. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">I'm not saying you can't aim higher than the minimum acceptable result, but just that you need to consider your options from the start. It might take you weeks of careful reflection to figure out what result you really want. You'll have the necessary time to reflect if you consider things from day one of the barrister-client process. You might only have 24 hours to decide on a deal once a firm offer is made. If you really didn't "do it" in a criminal case, then make clear up front to your barrister that the only acceptable result to you is full exoneration. That way he won't waste his time trying to negotiate a deal for you, but rather will first try to convince the Crown the drop the charges, and second will simply prepare to take your case to trial.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">In civil cases, an acceptable result might be more intangible. One result to consider is that you don't want to spend more on barrister fees than you save in settlement payments. As much as you don't want to give the other side a penny of your hard earned money, a good barrister will be frank with you about when your legal costs will outweigh your potential civil windfall.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">For instance, if hire a lawyer to sue someone in small claims court for $5000 in damages, get a judgment for $4000, get $750 in court costs, and pay $5000 in legal fees, and you'll be $250 poorer than when you started. But get a judgment for $20,000 with $3000 in court costs, and you'll be $18,000 ahead on that same $5000 amount of legal fees. So for civil matters, you need to be really careful in evaluating how much your case is worth - regardless of whether you're the plaintiff or defendant.
</span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">Anytime legal fees could outstrip case worth, that is a huge red flag. People often get sucked into spending stupid amounts of money on barristers because the expense doesn't seem too bad to start with, they're overly optimistic about how quickly they can achieve victory, and they don't press their barrister sufficiently for the worst case scenario. </span></div>
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span></div>
<!--?xml version="1.0" encoding="UTF-8" standalone="no"?-->
<br />
<div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">But there are things worth fighting for, even if fees climb. For the control and survival of your business. To be able to continue to practice your profession. But just be realistic about what you can live with, based on asking your barrister about the likely outcomes. If your barrister refuses to discuss this with you, find another barrister. But because your barrister may have hundreds of clients, don't expect him to be able to pry out of you what you really want, and to read your mind, if you don't tell him. </span></div>
Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com0tag:blogger.com,1999:blog-6261601516039322262.post-80670842903036951512016-04-21T01:48:00.001-07:002016-04-30T06:02:49.103-07:00HOW TO PROTECT AND DEFEND YOUR BUSINESS AND YOURSELF AGAINST FRIVOLOUS LAWSUITS<span style="font-size: large;">The longer you're in business, the greater the chances you'll be sued by someone who is disgruntled. This might be a disgruntled former employee, a disgruntled client, a disgruntled competitor, or even a disgruntled partner.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">If you've survived in business for more than a few months, you've hopefully moved past dwelling on the possibles, and only deal with the realities. So while all those people could sue you, fortunately few ever will. It can be very hard to predict from what quarter the litigation will come, but there are a few important proactive mitigation steps you can take to protect your business and yourself from such suits.</span><br />
<span style="font-size: large;"><br /></span>
<b><span style="font-size: large;">1. Incorporate and Buy Sufficient Insurance</span></b><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Incorporation and insurance aren't either or propositions, but they are most effective when used in combination. For really small businesses, the cost and hassle of incorporation (like preparing financial statements and filing corporate tax returns) may not be worth the benefit. Insurance has its limitations as well, but for professionals who can't shield themselves from legal liability through a corporate veil adequate insurance is an absolute necessity.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Be aware that incorporation is not an absolute shield to personal liability, especially when you have a "closely held" corporation with only a couple of owners and directors as is the case for many small businesses. You still might get sued personally, and court decisions are inconsistent on whether individuals should be let off the hook for actions or debts of corporations. The <i>Income Tax Act</i> can be especially onerous in pursuing directors and owners for tax corporate debts. But having a corporation operate as an intermediary between you and your customers and suppliers is usually a good thing once your business gets to a sufficient size.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">There's a tendency amongst both businesses and professionals to be underinsured, as people don't count on the high cost of legal defence eroding damages policy limits. Get a $1 million policy, spend $500,000 on defence costs, and you don't have a lot of insurance left. So buy excess coverage where available and affordable.</span><br />
<span style="font-size: large;"><br /></span>
<b><span style="font-size: large;">2. Carefully Document Your Business Relationships with Defencible Wording</span></b><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Many business people think themselves smart by committing all relationships to writing through employment contracts, purchase contracts, and partnership agreements. But if you draft abusive and vague agreements, they may be worse than not having anything at all in writing because those unfair agreements can turn a court against the party who drew up the lopsided written document.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Employment contracts that effectively prohibit former employees from working anywhere in the same field for years locally or nationally, purchase contracts that absolve the vendor of all liability for products or services sold, and partnership agreements that lock partners into a marriage with no escape until death can all be worse than no written agreement at all as courts may unpredictably strike down various agreement clauses as unconscionable, while leaving other clauses in place that create a two legged table that tips over but can't be predicted where it will fall.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Instead, get a lawyer's help drafting something that will later stand up in court. Taking a "we'll leave it to the courts to sort it out" attitude, be it lawyer or business owner who is drafting the document, will only cost the business in the end with litigation legal fees that will be many times greater than the fees charged to draft the original contract. I'm not saying an agreement can't tilt slightly in your favour and still be upheld by a court. But there is an indistinct line of unreasonableness that can't be crossed, and which you must carefully consider.</span><br />
<span style="font-size: large;"><br /></span>
<b><span style="font-size: large;">3. Defuse Business Conflicts Prior to their Escalation to Litigation</span></b><br />
<span style="font-size: large;"><b><br /></b>
While keeping employees, clients, suppliers and partners happy - within reason - might seem self-evident in avoiding litigation, many businesses violate this rule, and later pay the price in litigation costs. Taking the employee/client/supplier/partner is always right approach will not solve all your problems; I defend businesses against what can only be called frivolous and vexatious lawsuits that should have never been initiated, even after my clients have attempted reasonable accommodation. But at least some suits will melt away before they are filed if sufficient communication and moderate appeasement is offered to the other party. This will usually save you money in the long run, especially if you couple those measures with ensuring that complaining party signs an informed release of liability in your favour. However, simply giving in to the other party without getting anything in your return might not be in the best interests of your business.</span><br />
<span style="font-size: large;"><br /></span>
<b><span style="font-size: large;">4. File a Timely Defence, Consider Early Settlement, move to Strike Parties, move for Security for Costs, or move for Summary Judgment when you Do Get Sued</span></b><br />
<span style="font-size: large;"><b><br /></b>
If and when you do get sued, in Ontario you usually only have a short twenty days to draft, serve on the opposing party, and file with the court your defence! That time limit can be extended through various means, but you really need to contact a lawyer immediately upon receiving a claim so that you can understand your rights and the right of your business.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Even if you're only getting sued in Small Claims Court for $25,000 or less, I generally don't recommend people represent themselves because of the complexities involved. If you win, you're able to claim legal costs of up to 15% of the value of the claim (under Ontario rules), so you can recoup some legal fees.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">It's clearly pointless to spend more on legal defence fees than the value of the claim, but it's still worth consulting a lawyer to determine likely fees and whether it could be advisable to self-represent. If being sued in Superior Court outside of the Small Claims realm the Rules in Ontario require all corporations to be represented by a lawyer except with explicit permission of the Court.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">You need not feel that you're trapped into some multi-year court process if you move proactively when you do get sued to consider one of the following four options.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">a. <u>Consider Early Settlement</u> - if settlement costs will be way cheaper than legal fees, consider it a cost of doing business to buy your business out of the court case, even if you think you're in the right, so long as you get a solid release of liability, and aren't facing similar claims from others where there would be value in setting a court precedent.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">b. <u>Move to Strike Parties</u> - if you or your business have been named as peripheral parties in a multi-party lawsuit, or you've been named personally as a party that should only have been brought against your corporation, discuss with your lawyer whether a motion to strike you or your business as parties from the suit might work. Motions are cheaper to bring than being subjected to a trial, and if a motion can effectively kill off a case for your business, or at least protect you personally from a judgment, then it might be worth bringing.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">c. <u>Move for Security for Costs</u> - if you or your business are being sued by an organization or individual with no assets in Ontario (or whatever province the lawsuit has been initiated in), you might be able to move for "security for costs." This involves the plaintiff being compelled to post a bond with the court which could compensate you or other parties for some of your legal fees should the plaintiff have costs awarded against it. This might stop a lawsuit in its tracks if the plaintiff is unable or unwilling to deposit the funds with the court.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">d. <u>Move for Summary Judgmen</u>t - it's recently become quite trendy (after the stamp of approval from the Supreme Court of Canada) to successfully move for "summary judgment" as either plaintiff or defendant in order to shorten the trial process. Such motions can still take up several days of court time, and have specific criteria for success, so you should carefully discuss costs and prospects with your lawyer before such a motion is undertaken, but if there is a reasonable chance of success it might significantly shorten your time and costs in court.</span><br />
<span style="font-size: large;"><b><br /></b>
<b><br /></b>
</span><br />
<h1 id="content-title" style="background-color: white; border: 0px; clear: both; color: #666666; font-family: 'Yanone Kaffeesatz', sans-serif; font-size: 56px; font-weight: 300; line-height: 40pt; margin: 35px 0px 0.57692em; padding: 0px; position: relative; z-index: 1;">
</h1>
<div class="bookingWrapper" style="-webkit-text-stroke-width: 0px; background-color: white; border: 0px; color: #666666; font-family: Muli; font-size: 13px; font-style: normal; font-variant: normal; font-weight: 300; letter-spacing: normal; line-height: 15px; margin: 0px; orphans: auto; padding: 0px; text-align: left; text-indent: 0px; text-transform: none; white-space: normal; widows: 1; word-spacing: 0px;">
</div>
Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com3tag:blogger.com,1999:blog-6261601516039322262.post-9769142510732034172016-04-07T11:11:00.002-07:002016-04-07T11:11:22.252-07:00WHY EMPLOYERS AND EMPLOYEES ALIKE SHOULD AVOID GARBAGE EMPLOYMENT CONTRACTS<span style="font-size: large;">Demanding that even lower or mid-level employees sign written employment contracts seems to have become all the rage over the last few years. In the past, such agreements were usually limited to senior managers or executives. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">In theory, there's nothing wrong with employment agreements for everyone at a business if they helpfully clarify the mutual obligations for both parties. Certainly specifying pay levels, hours and duties of work is always helpful in avoiding misunderstandings. But what isn't helpful is inserting abusive and legally defective non-competition clauses that seek to prevent a departing employee from earning a living in his or her field for the foreseeable future. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">I write this as a lawyer who more often acts for employers, rather than employees. I tell my employer clients that it's pointless to pay a lawyer to draft up an employment agreement which no court in Canada will ever enforce because of its abusive terms. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The difficulty with a lot of these agreements is that the valid clauses state the obvious that doesn't really need to be stated - like don't steal our intellectual property - and the parts that aren't obvious - like you can't effectively work in your field anywhere in Canada (or anywhere within 100km) for the next year (or two years or three years) - are</span><span style="font-size: large;"> so abusive that they might invalidate the entire agreement, especially if they're combined with other abusive clauses. As an advisor to employers, the last thing a company wants is a court binning the entire agreement. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">For instance, I recently came across an agreement with wording similar to the following: "You agree that during the term of this Agreement and for a period of one (1) [why do lawyers so love to repeat words with numbers?] year after any termination of this Agreement, whether voluntary or involuntary, you will not, directly or indirectly, for your own account or on behalf of any other party, solicit, contact, contract with, supply, provide services for, do business with, or take any other action designed to procure business from any person, business or company who you solicited on behalf of ...., or with whom you did business on behalf of ...."</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">So what does a clause like that mean? I have no clue, and probably a court won't either. Is it a non-solicitation clause? Is it a non-competition clause? The sentence structure is so tortured, replete with so many commas, it's hard to know what it means. And I do spend a lot of time thinking about these things. Can a new employee really be expected to voluntarily consent to a clause like that in an informed way? </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">How about this even more outrageous clause: "You have carefully considered the nature and extent of the restrictions upon you and the rights and remedies conferred upon ... by this Article, and you hereby acknowledge and agree that the same are reasonable in time and territory, are designed to eliminate competition which otherwise would be unfair to ... and are fully required to protect the legitimate interest of ... and do not confer a benefit upon ... disproportionate to the detriment to you." </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Really? The drafting lawyer actually expected a reviewing court to buy that "carefully considered" crap? This clause seems to suggest the earlier clause really is a non-compete, and not a non-solicitation. And how are we to believe that a little competition would be "unfair"?</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">You sell a business to someone for a million dollars, it's an agreement between equals. And it's completely fair for the buyer to demand a non-compete for a set time and territory to ensure you won't simply set up the same business across the street. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Occasionally senior executives execute non-compete clauses in exchange for multi-million dollar golden parachutes. Nothing wrong with that. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">But to say to a mid-level employee: "we can fire you any time we like, and you won't be able to work for anyone else in your field," is ridiculous. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">I'll give you one last example of the most ridiculous, wordy clause of all: "You agree that the remedy at law for your breach of the foregoing provisions will be inadequate, and ... shall be entitled to both temporary and permanent injunctive relief (without notice or bond) enforcing such provisions, in additional to any other remedy it may have at law or in equity."</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">What does this mean? That they can throw you in jail for earning a living? Take away your birthday? And not give you notice of doing so? </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The moral here is for employers to closely question their lawyers when they ask for employment agreements to be drafted. Can you guarantee me that a court will uphold this agreement? If you have doubts, why? Are there ways we can improve our agreements that will make them more defensible, and easier to enforce, in court. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The message for employees is that I know you're going to keep signing these kinds of abusive agreements because you need a job. Take some comfort in the fact that the more abusive the agreement, the more impossible it will be to enforce late. But do get some legal advice before you part ways with your employer, in case there is a chance some of the agreement might stick. </span>Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com4tag:blogger.com,1999:blog-6261601516039322262.post-26581593705321390132016-02-21T08:38:00.003-08:002016-02-21T08:39:38.990-08:00HOW TO GET YOUR MONEY BACK THAT WAS SEIZED BY THE GOVERNMENT<span style="font-size: large;">Property rights likely come a close second behind physical liberty rights in the pantheon of fundamental human rights classes that the law is sworn to uphold. Neither property nor liberty in Canada are absolutes: the state can take away either after complying with procedural fairness and natural justice. For seized property, the state (or the courts) must offer seized property owners some kind of mechanism to contest the validity of seizure, detention or forfeiture of property. The key takeaway here is that any time the government seizes your property, you have rights to contest that seizure!</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The reason you might unfortunately need to get a lawyer involved in contesting any seizure is that the best means through which to contest the seizure are often not readily apparent. Those means depend on which part of the government seized the property, the statutory or other authority the government relied upon for the seizure, what kind of property was seized, and what the government ultimately plans to do with the property.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The byzantine legal road network for recovering seized property can be much more complicated than the well understood procedures involved in contesting a criminal charge (plead not guilty, then go to trial) or making a civil damages claim against someone (start a civil action, and then proceed towards trial). Contesting property seizures could involve applying to the government department who made the seizure, applying to an independent tribunal established by government, applying to the Superior Court of your province, or applying to the Federal Court. You'll also need to clarify under what statutory or other authority the (1) seizure, (2) detention, or (3) forfeiture is being justified by the government (believe it or not, different authorities might be claimed for each of the them).</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Your best remedies to pursue in response to government asset seizure will largely depend on the reasons for the seizure.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>1. Seized Due to Unpaid Taxes. </b>Tax seizures are amongst the easiest to remedy. Contrary to popular opinion, the Canada Revenue Agency can be very open to negotiating the return of seized property upon taxpayers complying with the tax rules. Sometimes, the CRA might even return more money to you than it originally seized!</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">For some of my clients, the problem might not be actual taxes owing, but just that for one reason or another they haven't filed tax returns in a few years. The CRA might have thus issued "arbitrary" assessments where they guessed at the tax owing, heaped on some interest and penalties, and then proceeded to seize banks accounts or real estate in order to pay those arbitrary tax debts. The fix is to bring your tax return filing up to date, which might show you owe far less than the CRA seized. You can then follow that with a "Fairness Application" to the CRA requesting that interest and penalties be reduced or eliminated if you have an explanation as to why your returns weren't filed on time.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">For other clients, they really do owe some taxes, but need to avoid ongoing CRA seizures of all funds deposited into their bank accounts, and ongoing liens continuing on their real property. The fix is to pay a reasonable portion of the balance owing to the CRA, establish and adhere to a payment schedule for the remainder of the balance owing, and bring your other tax filings into compliance with the law. This will make the CRA happier than you might think. You don't need to fix 100% of your tax problems overnight for the CRA to back off.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The CRA's goal is not to punish (that's the goal of the criminal law), but rather to encourage people to come into compliance. Thus they use both a carrot and stick approach. Much can be accomplished through an ongoing dialogue with the CRA. Harsh treatment is usually only meted out to those who ignore all CRA communications, and stick their heads in the sand. If you're intimidated in dealing with the CRA, hire a lawyer or accountant to do your talking for you - it might not even take much legal or accounting work to sort out your tax situation to the CRA's satisfaction.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>2. Seized Due to a Third-Party Debt.</b> Generally the government isn't in the habit of using its resources to assist in the collection of private debts. However, there are exceptions for existing for family law debts. But even then, large scale property seizures are usually not facilitated (this is left to the creditor party to privately enforce). Garnishment of employment wages and government benefit payments like pensions are the most common form of government seizure due to a family law debt. The remedy here may be to retain counsel to bring a change of circumstances motion before the appropriate court, which might be able to retroactively cancel all or much of the accumulated debt, or at least reduce or eliminate future debt liability.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>3. Seized Due to Allegations of Proceeds or Instruments of Crime. </b>Alleged proceeds or instruments of crime seizures are the most complex of the getting your money back from the government situations to deal with because government authorities for the seizure, detention and forfeiture for your property can be murky at best, and courts have been inconsistent in they ways they have permitted property owners to challenge these seizures.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Back when I started working as a federal drug prosecutor, the days of proceeds of crime seizures and forfeitures were still in their infancy, and generally only the "biggest of fish" and clearest of cases were being pursued. But it appears federal government success on those early days cases encouraged the movement of provincial governments into the seizure and forfeiture realm, and also encouraged a variety of federal and provincial regulatory bodies to increasingly seek "no conviction" asset forfeiture.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">For example, Ontario's <i>Civil Remedies Act, 2001 </i>is being increasingly used to seek the seizure, detention and forfeiture of private property, without any charges ever having been laid against anyone. Ontario sets out laudable goals for its civil remedies initiatives: <a href="https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/20070824_CRIA_Update.pdf">https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/20070824_CRIA_Update.pdf</a> . However, there has been increasing criticism of such initiatives as being essentially punitive in nature: <a href="http://news.nationalpost.com/full-comment/marni-soupcoff-ontarios-civil-forfeiture-racket">http://news.nationalpost.com/full-comment/marni-soupcoff-ontarios-civil-forfeiture-racket</a>. Academic concern has also been raised that civil forfeiture pursuit may divert resources away from productive private economic activity and more meritorious public resource expenditure on the pursuit of true criminal misconduct: <a href="http://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1125&context=uwojls">http://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1125&context=uwojls</a>.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">You can no longer assume that the government department that seized your property is the one who is detaining it. And you can't assume that the department which is detaining your property is even the one which will seek its forfeiture. It can be like a shell game. You need to be prepared to go to court to stop the moving around of the shells, and to flip over the shell under which your property is being kept so that you can secure its return.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><br /></span>
<br />Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com0tag:blogger.com,1999:blog-6261601516039322262.post-25543977997620547462016-01-13T12:33:00.001-08:002016-01-13T12:33:33.577-08:00HOW TO "WRITE LIKE A LAWYER," AND WHY YOU DON'T WANT TO DO THAT, EVEN IF YOU'RE A LAWYER<span style="font-size: large;">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.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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."</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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..."</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">5. Write "<b>DO GOVERN YOURSELF ACCORDINGLY</b>" 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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com58tag:blogger.com,1999:blog-6261601516039322262.post-77567243996583903282016-01-11T10:00:00.003-08:002016-01-11T10:02:15.917-08:00HOW LANDLORDS AND TENANTS CAN SEEK JUSTICE FOR COMMERCIAL LEASING DISPUTES<span style="font-size: large;">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). </span><br />
<div>
<span style="font-size: large;"><br /></span></div>
<div>
<span style="font-size: large;">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. </span></div>
<div>
<span style="font-size: large;"><br /></span></div>
<div>
<span style="font-size: large;">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 <i>Commercial Tenancies Act</i>, R.S.O. c. L.7.</span></div>
<div>
<span style="font-size: large;"><br /></span></div>
<div>
<span style="font-size: large;">That Act generally applies to all tenancies to which the <i>Residential Tenancies Act, 2006</i> does <u>not</u> apply. Unfortunately the <i>Commercial Tenancies Act </i>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.</span></div>
<div>
<span style="font-size: large;"><br /></span></div>
<div>
<span style="font-size: large;">The <i>Commercial Tenancies Act</i> 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.</span></div>
<div>
<span style="font-size: large;"><br /></span></div>
<div>
<span style="font-size: large;">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. </span></div>
<div>
<span style="font-size: large;"><br /></span></div>
<div>
<span style="font-size: large;">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 <i>Commercial Tenancies Act </i>do provide for robust remedies for both landlord and tenants facing commercial leasing injustices. </span></div>
<div>
<span style="font-size: large;"><br /></span></div>
<div>
<span style="font-size: large;"><br /></span></div>
Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com2tag:blogger.com,1999:blog-6261601516039322262.post-17529057883321936912016-01-10T08:56:00.002-08:002016-01-10T08:56:42.963-08:00SHOULD I PLEAD GUILTY TO MY CRIMINAL CHARGE? FIVE THINGS TO CONSIDER<span style="font-size: large;">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.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">There are five primary factors I tell my clients to consider when deciding whether or not to plead.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>1. Did you actually commit a criminal act?</b> 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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>2. Can you live with the likely consequences of a guilty plea?</b> 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.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>3. Can you financially and emotionally afford to go to trial?</b> 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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>4. Is the sentence after trial likely to be much worse than the sentence on a plea? </b>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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>5. What are you chances of winning a trial? </b>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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span>Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com0tag:blogger.com,1999:blog-6261601516039322262.post-80450347491142519672016-01-09T15:21:00.002-08:002016-02-21T09:44:07.942-08:00TOP THREE CONSIDERATIONS IN DECIDING WHETHER TO APPEAL A JUDGMENT<span style="font-size: large;">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!</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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."</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Here are my top three considerations that you should take account of prior to approaching a lawyer to undertake an appeal:</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>1. Do you really have an error of law to appeal? </b>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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>2. Will the likely outcome of an appeal get you what you want?</b> 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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>3. Do you have the resources to pursue an appeal and its possible outcome of more litigation? </b>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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><br /></span>Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com3tag:blogger.com,1999:blog-6261601516039322262.post-2614192210055648882016-01-07T13:52:00.004-08:002016-02-21T09:41:47.366-08:00SMALL CLAIMS COURT OR SUPERIOR COURT OF JUSTICE: WHICH SHOULD YOU CHOOSE FOR YOUR CIVIL CLAIM IN ONTARIO?<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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!</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The key things to know about the Small Claims Court are that:</span><br />
<br />
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">2. You can only demand the return of property up to a value of $25,0000. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">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. </span>Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com4tag:blogger.com,1999:blog-6261601516039322262.post-34725294851482162192015-12-08T21:03:00.003-08:002015-12-08T21:05:42.066-08:00FIVE COMMANDMENTS FOR COST-EFFECTIVE CIVIL LITIGATION<span style="font-family: Times, Times New Roman, serif; font-size: large;">Not all litigation is about money. As a result, the advisability of some court action like criminal defence or family proceedings can't simply by evaluated by comparing the likely legal expense versus the likely amount of money to be recovered or saved. Defending your freedom or your family can be priceless.</span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">But outside the criminal, family and a few other speciality areas of the litigation world, most litigation is about money at the end of the day. Thus whether you call it property litigation, construction litigation, contract litigation, tort litigation, or estate litigation, it can usually all be fit under the common umbrella of "civil litigation" and will mostly result in a monetary reward for or against you.</span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">It's thus easier to measure success in civil litigation than in non-monetary types of litigation. Success is largely a function of getting (or saving) more than you spend to get that result. It's simple economics. As litigation costs rise, so needs the amount of money likely to be recovered to grow ever bigger in order for the effort to be worthwhile. Low leal costs can justify pursuing or defending quite small sums - such as in small claims court - whereas astronomic predicted costs can only justify pursuit or defence of astronomic sums.</span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span>
<span style="font-family: Times, Times New Roman, serif; font-size: large;">I thus offer you five commandments for cost-effective civil litigation which will maximize your chances of coming out on the winning side every time - meaning spending less than you get or save.</span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>1. CHOOSE SMALL CLAIMS COURT IF YOUR DEBT IS LESS THAN TWO TIMES THE LIMIT OF SMALL CLAIMS. </b>Small Claims Court is much, much cheaper than Superior Court, so make sure you go to Small Claims if the amount you're claiming is anywhere under double the limit of Small Claims. Small Claims Court uses a much simplified procedure than higher courts so that you get to trial much more quickly, which will save significantly on legal fees. This means in Ontario at anything under $50,000 you should be looking at Small Claims Court. True, as a plaintiff you'll be limited to getting $25,000 plus costs, rather that $45,000 or something similar. But you'll potentially save tens of thousands in legal fees. If you spend $5,000 to get $25,000 in Small Claims, you'll be far better off at the end of the day than spending $40,000 to get $50,000 in Superior Court. It's simply a question of math.</span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>2. THINK TWICE BEFORE COMMENCING ACTION IF YOUR LEGAL FEES COULD APPROACH THE VALUE OF YOUR DEBT. </b>This means that if you believe you're reasonably entitled to $75,000, but you might spend $60,000 in legal fees getting that $75,000 judgment, it just might not be worth it. First, you might lose your case outright. Second, you might not get the "costs" against the other side that you are hoping for. And third (most importantly), the defendant might be judgment proof - meaning there are no assets against which you can collect your winning judgment. If your potential claim value is in the millions of dollars, it will be far easier to justify legal costs than for a $100,000 claim. The legal work involved in pursuing each claim might be similar, but fees will be far easier to justify where the amount is dispute is many times the likely legal fees.</span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>3. CONSIDER IF YOU HAVE A PROVABLE CAUSE OF ACTION OR DEFENCE. </b>Although you might firmly (and correctly) believe yourself to be morally in the right, if you can't legally prove a party you are suing is at fault in your claim (or can't adequately defend against a claim of fault made against you), you aren't going to succeed in your case. You need evidence. Cold hard documents work best. But expert reports, or even neighbours to testify in backing up your story could help. If it's just your word against the word of the other party, it's time to worry (regardless of whether you are plaintiff or defendant).</span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>4. ENSURE YOU CAN PROVE (OR DISPROVE) YOUR DAMAGES. </b>Proving the other guy is "at fault" isn't enough. You also need to prove what he owes you. This means that even if its abundantly clear that a party is liable, proving only nominal damages (which might be as low as a dollar) lead one to wonder what's the point of going to court? You might feel justifiably outraged about a situation, but that by itself won't get you "punitive" damages in Canada. Generally you'll be stuck with compensatory damages, meaning damages sufficient to place you back in the position you were in before the other party did what he or she did. Thus you might not like that you neighbour pushes his driveway snow five centimetres on to your property when he plows after each winter storm, but how are you going to quantify the loss this supposedly caused you? By comparison, wind up in an auto accident and lose an arm, and everyone will agree you're owed significant money by a party at fault, even if there remains debate over exactly how much.</span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><b>5. NAME ALL REQUIRED PARTIES. </b>Thus avoid suing small corporations by themselves; rather, try to add individuals like the President of a corporation as a party so long as there is a plausible legal basis for doing do. This avoids a named party claiming that other unnamed parties are really the ones at fault, and further avoids you possibly getting a hollow judgment against a shell corporation.</span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><br /></span>
<br />Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com11tag:blogger.com,1999:blog-6261601516039322262.post-75455553251902565132015-11-24T11:48:00.001-08:002015-11-24T11:49:42.105-08:00KNOWING WHEN TO PULL THE TRIGGER ON COURT ACTION<b><span style="font-size: large;">The Three-Thirds Rule</span></b><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">I once read somewhere that 1/3 of all cases settle after getting lawyers involved but before any court action is started, another 1/3 settle after the start of court action but prior to the case going to trial, and another 1/3 are only resolved during or after the trial (or motion or application or other type of contested hearing). I'm not sure if these figures are accurate for Ontario courts, but I do believe they provide a good guide for determining when and how you should resort to professional legal help and the courts when you're involved in a contentious legal dispute.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Make sure you take full advantage of that first 1/3 of settlements without court chance before you rush off to court. And even when you are in court, don't rush off to trial without maximizing that second 1/3 of settlements prior to trial chance. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><br /></span>
<b><span style="font-size: large;">A Modest Legal Investment at the Pre-Court Stage</span></b><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Some disputes are always going to settle without any lawyer involvement, because all parties to the dispute are reasonable, and there's not much need for legal advice about respective rights. These could involve business or personal debts, or simpler disputes over property rights. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Other disputes might still have reasonable parties involved, but require a little nudge from the lawyers in the advice department because of the stakes at play. A good example is family law situations where, regardless of how amicable the split, spouses will need solid legal advice on asset split, spousal and child support, and child custody in order for any agreement arrived at to be later defensible in court if one of the parties subsequently decides he or she is unhappy with the arrangement. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Still other conflicts could need a lot of lawyer involvement prior to the court phase in order to reach a settlement, with the lawyers playing the roles of negotiators, mediators and advisors on next steps. You should always bear in mind what is the best alternative to a negotiated agreement. That extra lawyer involvement at the pre-court stage will usually come at a fraction of the price of lawyer-led court action. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">A couple of hours of lawyer time, or even a dozen hours depending on stakes, can be a total bargain if it solves your legal issue for you. As soon as the court action ball starts rolling, the lawyers will start to burn through time. Court action is expensive not because of the fees the courts charge - they only amount to a few hundred dollars, with your tax dollars covering the vast majority of court judge, clerk, reporter and building time - and not even because of lawyer hourly rates, but because of the amount of time lawyers need to devote to becoming properly prepared for court, and then appearing for you in court. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><br /></span>
<b><span style="font-size: large;">Four Tips for Deciding When to Proceed to Court</span></b><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">1. <u>Wait as long as is humanly possible</u>. Even if it feels almost impossible to wait any longer, because your situation has become intolerable, it may pay to wait even longer. Once you pull that court action trigger, the positions of parties harden, lawyer bills shoot up on both sides, and it becomes difficult for any party to disengage from the action. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">2. <u>Start court action if there is a true stalemate in negotiations</u>. I'm not saying you should wait forever to go to court. Eventually, enough is enough, and sometimes initiating court action may break a stalemate, causing the opposing party to immediately settle in order to avoid legal fees and the possibility of losing in court. But you shouldn't count on that settlement. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">3. <u>Start court action sooner if the stakes are so high that they justify the cost, and you have the resources to fund such action</u>. If you're fighting over $10,000, you should be much more cautious over initiating court action than if you're fighting over $1,000,000. In the first fight, your legal fees could exceed the sum in dispute. In the second fight, the legal fees might be just a few percent of the amount of loss. Non-monetary high stakes that also could justify sooner court action might involve child custody arrangements, or if your own personal liberty is at stake. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">4. <u>Immediately start court action if your position is going to be significantly prejudiced by waiting</u>. If assets that could compensate you for your loss or evidence that can prove that loss is at risk of disappearing, because the opposing party might hide them or destroy it, you might need to immediately go to court to freeze those assets and preserve that evidence. A Mareva Injunction or Anton Pillar Order are interlocutory remedies that a court can give you to preserve assets and seize evidence. An injunction can generally force a party to do or not do something on a temporary basis when there is a risk that you will suffer irreparable harm if the injunction is not granted. </span><br />
<span style="font-size: large;"><br /></span>Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com0tag:blogger.com,1999:blog-6261601516039322262.post-84143478927261775622015-11-06T11:33:00.000-08:002016-02-21T09:32:32.534-08:00MAKING BAIL: FOUR TIPS TO MAXIMIZE YOUR CHANCES FOR THAT GET OUT OF JAIL FREE CARD<span style="font-size: large;">Other than being charged, making or not making bail may have a greater affect on the outcome of your criminal case than any other factor. Greater than the evidence investigators claim to have amassed against you. And even greater than what transpires at your trial.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Our constitutional law is rife with assertions that you are presumed innocent until proven guilty, and that you've got a right to a trial within a reasonable time. There's a less well known provision contained in s-s. 11(e) of the <i>Canadian Charter of Rights and Freedoms</i> which affirms that "Any person charged with an offence has the right ... not to be denied reasonable bail without just cause." But don't make the mistake of thinking this provision means that you're almost guaranteed to make bail if you don't have a horrible criminal record and aren't already out on multiple other bail releases.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The Crown frequently demands that people accused of offences be detained in custody pending trial. Even for people with no criminal records. Even for people not already out on another bail. And even for people not accused on the most serious criminal offences. The ultimate release decision rests with the Court, not the Crown, but if the Crown demands your detention then you're facing a contested bail hearing. You should make sure you have a lawyer for such a hearing, regardless of whether it is legal aid duty counsel, or a privately retained lawyer (I serve in both roles from time to time).</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Unfortunately, Parliament has set up a complex set of provisions in the <i>Criminal Code</i> governing the tests which must be met to make bail, the evidence admissible at a bail hearing, and on whom the onus falls - Crown or defence - to establish the tests. What this means for you or your loved one who is locked up awaiting a bail hearing is that you need a strong bail plan to present to the court, and you need evidence to back up it. Promises simply to behave usually just won't cut it alone.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">So the tips I can offer you to maximize your chances for that get out of jail free card are:</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>TIP #1: Contact one or two "sureties" who can be present at the bail hearing to vouch for you, and agree to supervise you during your release pending trial.</b> They're like civilian jailers, who keep an eye on whether you're obeying your conditions, and pledge to call the police if you breach. They also usually pledge a sum of good conduct money, but usually without any upfront deposit. If you're able to, start calling potential sureties as soon as you've been arrested, as you might have trouble getting hold of them, and everyone you call might not want to act. Or ask your lawyer to make the calls.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>TIP #2: Figure out if you have some cash available for a bail deposit. </b>While we don't do massive bail bonds in Canada as happens in the U.S. (where a bondsman essentially lends you a large amount for bail), the courts do always appreciate some cold hard cash as a behaviour incentive while on bail. It's almost always required if you're from out of province or out of country from the place you're accused of committing an offence in. Any amount from $1,000 to $100,000 can be useful (higher amounts of cash are possible, I suppose, but I have only personally seen no deposit sureties go higher, like when someone pledges a house).</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>TIP #3: Present a release plan that will keep you out of trouble while on bail. </b>This plan could range from anything like where you will be working or attending school, up to a curfew, and even 24 hour per day house arrest with never leaving the house without your surety. Generally, the more serious the accusations, and more of a record or other releases you have amassed, the more the need for stricter release conditions.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>TIP #4: Gather together documentary evidence to support your sureties and release plan. </b>So if you claim to be working somewhere full time, ask your boss for a letter to confirm this. If your mother intends to pledge $20,000 in your favour for your release, obtain her title documents for her house proving what she owns, how much it is worth, and how much of a mortgage sits on it - great precision here isn't required, but something is usually necessary beyond the simple word of your surety.</span><br />
<span style="font-size: large;"><br /></span>
<br />Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com10tag:blogger.com,1999:blog-6261601516039322262.post-55130807541284661652015-11-03T07:46:00.000-08:002015-11-03T07:46:00.417-08:00THE RIGHTS OF MOTHERS AND FATHERS IN CHILD PROTECTION CASES: THE NEED FOR EVIDENCE TO ARGUE FOR CHILDREN'S BEST INTERESTS<span style="font-size: large;">Everyone agrees the "best interests of the child" test trumps all in child protection proceedings. However, the innumerable child protection court cases which reveal five versions of children's best interests - the Children's Aid Society (CAS) version, the Office of the Children's Lawyer (OCL) version, the father's version, the mother's version, and the court's version - demonstrate the often highly subjective nature of children's best interest assessments. Child protection law is more "art" than "science." Which is why expert reports, while helpful, are never definitive in presenting the one ideal plan of care that will be in the children's best interests. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">If one even looks at basic children's law principles like children are generally better off residing with their parents, parental contact should be maximized in access situations, and wishes of older children should be taken into account when making best interests assessments, competing views of best interests quickly turn the conversation into a quagmire if CAS insists neither parent is fit, both the mother and father insist it is the other parent who is unfit, and the OCL expresses the children's views that they want to live equally with each parent. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The demand you hear most often from child protection judges is for more evidence of best interests. Judges don't want to guess, they want to decide on facts. So if you - whoever you are - are putting forward a particular plan of care for a child, you're going to need some cold, hard facts to back up why that plan is feasible, rather than just wishful thinking. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Rules of evidentiary admissibility are pretty loose in child protection, so you don't need to get too hung up on legal formality. Letters written by relatives, or social workers, or medical professionals, or addiction counsellors can all work, though usually they should be appended as exhibits to someone's affidavit sworn to present the overall version of the facts. But each of those people don't need to file their own affidavits, and usually would not be required to attend court to testify. Getting your own expert witness would be best of all, but don't make the mistake of hiring an expert, and then rejecting his findings. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Showing up in court asserting your rights as a father or mother, arguing that a particular plan is in your children's best interests, and having no evidence whatsoever to back you up other than your own promises, usually isn't going to cut in in the face of conflicting CAS sworn evidence. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">As a lawyer who represents fathers and mothers in child protection proceedings, I firmly advocate for my client's rights, and their views of what is in their children's best interests. However, my clients need to give me evidence that permits me to sell the court on the correctness of their arguments. So as soon you as father or mother learn that CAS is showing interest in your family, you should start compiling evidence that will assist you and your children in court much later. </span>Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com0tag:blogger.com,1999:blog-6261601516039322262.post-57847925068460198072015-11-01T06:25:00.004-08:002015-11-01T06:29:59.379-08:00ESTATE LITIGATION: FIVE TIPS ON HOW TO DEESCALATE FAMILY FEUDS <span style="font-size: large;">In the "good old days" (which often weren't so good), most of us died relatively poor. We might hopefully have been rich in life accomplishments, and family or friends, but financially speaking there often wasn't a whole lot left to divvy up among those who survived us. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">With significant increases in home ownership, and especially significant rises in the equity held in those homes in Canada's major urban centres, if you die owning a mortgage-free house, you now often die rich. Plus there may be life insurance and investments to distribute. This is all great for one's survivors, but not so great if family relationships are already a little strained at the time of passing. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">In the old days, even if beneficiaries of estates were inclined to squabble over who got what, they did not often retain legal counsel to do so if the legal fees would outweigh the money in dispute. But now with estates frequently running into the hundreds of thousands of dollars (or more) in value, "lawyering up" is becoming more common. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">As an estate litigation and dispute settlement lawyer, I've found having some background in drafting wills and powers of attorney for clients has helped me assist families in deescalating disputes before they start, and managing disputes if they are already ongoing. Here I offer you five basic but key tips to deescalating actual or potential estate family feuds.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>Tip #1: Picking the right executor for your will may be more important than picking the right beneficiaries.</b> I find people often spend months of time debating who should or should not receive that prized china tea cup in a will, but spend about five minutes (literally) determining who should act as executor and estate trustee. Your executor is THE key player who will determine whether your estate is distributed hassle free, or with acrimony and lawyer involvement. Picking someone who is relatively impartial (and ideally not a major beneficiary, but who is compensated for his or her effort), and has people skills, is the usually the best strategy. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>Tip #2: Don't completely exclude anyone who is deserving from your will. </b>The more people you "cut out" of your will who might usually be expecting a gift, the more you heighten the chances for one of them challenging the will. You definitely don't need to treat everyone equally (at least under Canadian common law, as in Ontario), but if you have three children, and you give two of them $100,000 each, and the third one nothing, you are asking for trouble. Even if you have good reasons for doing so. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>Tip #3: Once a dispute has started, quickly get legal advice but try to prevent it going to court. </b>A lawyer's opinion is a bargain compared to the hassle and expense it can later save you. However, dragging a case (or being dragged) into court is never a bargain, and will take at least months and possibly years to resolve. Once that litigation freight train starts heading down the track, it can be very difficult to apply the brakes. </span><br />
<b><span style="font-size: large;"><br /></span></b>
<span style="font-size: large;"><b>Tip #4: If you are in court, keep open a dialogue with the other side(s). </b>While this tip might appear obvious, my experience is that many assume that once a matter is in court, they should just "let the court sort it out" and stop speaking to the other parties. It's unlikely a court will actually be able to sort it out in a definitive way - a court might clarify the issues, and resolve some of them, but definitive resolution could require many, many years since even if you are successful at trial, an appeal is possible, so keep the lines of communication open.</span><br />
<b><span style="font-size: large;"><br /></span></b>
<span style="font-size: large;"><b>Tip #5: If you are involved in a contested court hearing, ensure you have solid evidence to support your position beyond just your oral testimony. </b>It's reasonable to assume that judges want to make "just" and "fair" decisions, but they can only do so based on the law and evidence before them. Even if the law is on your side (for example, that a properly executed will is valid), prepare to back up your position with lots collateral evidence. Judges love documents - as they're less likely to lie than witnesses - so try to produce some supporting your position. Other witnesses backing up testimony will also help. You might also need expert witnesses. You will make your legal bill lower and greatly increase of your chances of success in court by helping you lawyer locate the documents and witnesses you need to present a compelling case. </span><br />
<span style="font-size: large;"><br /></span>
Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com3tag:blogger.com,1999:blog-6261601516039322262.post-63177266820390764962015-06-29T13:06:00.000-07:002015-06-29T14:49:58.712-07:00ALEXANDRIA ONTARIO COURT REPRESENTATION<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgFH5jQeOtDX_cR1fE6zW6EnRMiRuwjRW4kSORHDtBUl5hi0c2FDAkfw72A6P-YBXTOsweRNMAFYQ18rCaGgJaBw5vzlSP9TLs3L3yZbMm_7UyISOIZb4vaUmuC6eLUkYaZZGN2LRsB_zE/s1600/IMG_0424.JPG" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="480" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgFH5jQeOtDX_cR1fE6zW6EnRMiRuwjRW4kSORHDtBUl5hi0c2FDAkfw72A6P-YBXTOsweRNMAFYQ18rCaGgJaBw5vzlSP9TLs3L3yZbMm_7UyISOIZb4vaUmuC6eLUkYaZZGN2LRsB_zE/s640/IMG_0424.JPG" width="640" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">ONTARIO COURT OF JUSTICE, ALEXANDRIA, ONTARIO</td></tr>
</tbody></table>
<br />
<span style="font-size: large;">Canada is filled with quaint, picturesque, historic courthouses. I've previously done a post asking for your favourites. As you can see from the above photo, Alexandria's courthouse might unfortunately not count among the quaintest, nor most picturesque of historic courthouses of Canada (it is, after all, a former grocery store converted to court purposes). But I do maintain that its case and user composition is among the most diverse you'll find anywhere in the country. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">While the courthouse in theory was established to serve Alexandria's population of 4000 people and greater North Glengarry Township and South Glengarry Township populations totalling about 26,000 people, a constantly changing interprovincial and international cast of tens of thousands of people travel daily through its southern stretches running just north of the mighty St. Lawrence River. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Approximately 19,000 vehicles per day (according to MTO stats) pass through its jurisdiction along the Highway 401 (from the Quebec border in the east to the City of Cornwall limits in the west), including the last chances for cheap gas before Quebec or the first chances for cheap gas after entering Ontario. Those vehicles range from commercial trucking traffic to college students headed down for fun weekends in Montreal to families off on summer camping adventures across Canada. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">You'll see a range of vehicle plates from Nova Scotia to British Columbia to Ohio. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">What brings them all together at the Alexandria Courthouse is their misfortune of being stopped on the 401 and charged with a criminal or highway traffic offence. Their first of many court appearances will be at the Alexandria Courthouse. And their next appearance. And the appearance after that as well. All the way up to trial day. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Criminal and provincial offence systems in Ontario are based on in-person appearances. Regardless of whether you're from Halifax, or Sept Isles, or Brampton, or Vancouver, you'll be stuck coming back to Alexandria. Again. And again. And again. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">That is, unless you hire a lawyer who can appear as your agent. Appear to request disclosure, analyse your case, propose how to proceed, and deal with adjournments. Appear to handle Crown pre-trial negotiations. And appear to conduct judicial pre-trials. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">You'll still eventually need to appear in person for any guilty plea or trial (though for highway traffic offences you won't even need to do that). But a lawyer appearing for you at any stage can save you a whole lot of travel and waiting around for your case to be called hassle. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">My office is right across the street from the Courthouse (that above photo is taken from my front office steps). I'd be pleased to help you out with your court appearances and court cases in Alexandria, Ontario. I've been involved in criminal and regulatory law for twenty years, have worked in every province and territory of Canada (except for the Yukon), and litigated criminal and civil cases up to the level of the Supreme Court of Canada. But I especially like living and practicing in this particular far eastern corner of Ontario. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">If you're an out of area lawyer (be you from Toronto or Montreal or elsewhere) who has a client with court appearances in Alexandria, I'd likewise be pleased to assist you so you don't have to run out here every 30 days (the usual cycle of appearances at the Alexandria court) pending your settlement negotiations or setting of trial dates. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Don't hesitate to contact me at the coordinates to the right of this post. </span><br />
<br />Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com6Alexandria, ON K0C, Canada45.3111798 -74.6367157999999945.266509799999994 -74.717396799999989 45.3558498 -74.556034799999992tag:blogger.com,1999:blog-6261601516039322262.post-48526481365712585752015-06-06T12:20:00.000-07:002015-06-06T12:20:56.540-07:00TOP 5 DRUG TRIAL DEFENCES THAT WORK - #3 - THEY'RE FOR PERSONAL USE<span style="font-size: large;">The <i>Controlled Drugs and Substances Act</i> and the courts make huge distinctions between drug users and drug traffickers. From a sentencing perspective, drug trafficker punishments could be 100 times more severe than drug user punishments.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Being accused of "simple possession" of a drug will usually lead to diversion (out of the judicial system), a discharge (avoiding a criminal record), a suspended sentence (with no additional punishment) or a small fine. By comparison, being accused of trafficking (or possession for the purpose of trafficking) could land you in a federal penitentiary for many years, depending on the type and quantity of drug trafficked.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Because of this huge distinction between possession and trafficking, a strong defence to any possession for the purpose of trafficking charge is that the drugs - regardless of their quantity, packaging and surrounding circumstances - are solely for personal use.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">This defence isn't going to work for you if there is strong evidence that you actually sold or gave drugs to someone else, like an undercover officer, because then your tiny amount of possession will transform itself into a not so tiny amount of trafficking. Practically speaking, there's no such thing as a huge amount of simple possession (you'll always be accused of possession for the purpose of trafficking if found with huge quantities of a drug), and there's no such thing as a tiny amount of trafficking (while multiple traffickings and trafficking in large quantities will net you more prison time, the starting point for even smaller amounts of trafficking in "serious" drugs can be quite significant jail time).</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">But if you're one of the many who are found to have drugs on their person, in their vehicle, or at their home or business, <u>and</u> there's no evidence that you trafficked, the "they're for personal use" defence might work for you. There are a few especially good features of this defence.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">First, it's one your lawyer might be able to negotiate for you with the Federal Crown, without your having to take your chances with a judge or jury by running a trial. If the Crown becomes convinced that there may be no "reasonable prospect of conviction" against you on the possession for the purpose of trafficking charge, perhaps because the quantity of the drug is fairly low, or there aren't lots of other indicia surrounding its possession which they can point to in support of a trafficking conviction, then a deal may be possible. The Crown may prefer the certainly of a possession conviction - certain because you will plead guilty - in preference to the iffiness of running a PforP trial that could end in an acquittal on all charges.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Two, if you do need to run a trial, in order to prove the charge the Crown will be dependant on the qualification and opinion of an "expert" who will testify that such a quantity of such a drug, together with any other indicia of trafficking surrounding its seizure from you, inevitably leads to the conclusion in his or her expert opinion that your purpose for the possession must have been trafficking. The problem with experts from the Crown's perspective is that it can be tough to find ones who are truly qualified to demand the opinion that is being asked of them. Sometimes the Crown will be forced to pull any detective constable out of the drug squad who's been running drug investigations for a few months, and seek to convince the court he can be an "expert."</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Some "experts" may have minimal knowledge of drug use, and the amount an addict might reasonably keep for personal use purposes. Yes, if you're found with one metric tonne of cocaine, the expert's job then might be easy. But many cases involve grey areas for quantities that might be trafficking, and might not be trafficking.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Likewise, the so-called hallmark "signs" of drug trafficking that experts will testify about have no science behind them. When I started prosecuting drug cases back in 1995, we argued that everyone with a cell phone and a moderate amount of drugs must be a dealer. Because really, what were cell phones good for other than for doing drug deals? If you had a cell phone and a pager, or two cell phones, we argued there could hardly be any doubt at all over the intent of the accused! Times change.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Thus your lawyer can challenge the qualifications of an expert, challenge the weight threshold at which point one can start making claims that it can't be for personal use, and challenge the significance ascribed to items found in your possession as being probative of trafficking.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Lastly, to be successful at a possession for the purpose trial you don't need to convince the court that there's a reasonable doubt about you being in possession of the drugs. You only need to raise a reasonable doubt about the purpose of that possession.</span>Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com0tag:blogger.com,1999:blog-6261601516039322262.post-27977599731666572692015-05-18T09:06:00.000-07:002015-05-18T09:06:03.053-07:00Access Easements: What to Do if you get Walled In to (or Out of) Your Property<span style="font-size: large;">As a real property dispute resolution lawyer, I'm often consulted by folks who own property either subject to an easement or in whose favour an easement does or should exist. An easement is generally a right to do something concerning a piece of land, that's short of a right to possess the land. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">An easement is usually set up to benefit an adjoining piece of land, and will "run with the land" to successors in title. Perhaps the most common form of easement is a right to traverse land in order to access adjacent land. Access easements are especially common in cottage situations, where water, rocks, woods and remoteness may make other road access difficult. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Sometimes a woodlot owner or farmer will sever small waterfront vacation lots off a larger lot, keeping the back woods or fields for his own harvesting use. The key to making this arrangement work is often the construction by the lot vendor of a common shared road from a public highway through the remaining woods or fields, to connect up with the cottages. What's supposed to happen from a legal perspective is that each of the cottage lots has an access easement registered in its favour against the parcel of land that the access road crosses. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Problems can arise when those easements don't get formally registered on title, or when a new owner buys the larger parcel and fails to maintain or attempts to block the access through it. Problems can also arise if all of the cottage lot owners are supposed to jointly contribute to the upkeep of the access road, and one or more of them repeatedly refuses to pay. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">A court application might be necessary to establish and enforce access rights. A court action could also be required to collect the maintenance debt for the non-payors. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">In Ontario, access "applications" go before the Superior Court of Justice, and a full blown "action" (which can involve drawn out discoveries and considerable expense) may not be necessary as the Rules of Civil Procedure permit a much simpler "application" to determine questions of rights in land. For non-payment of maintenance costs, an action is necessary (as it involves the collection of a money debt), but it could proceed before the relatively inexpensive Small Claims Court so long as the claim doesn't exceed $25,000 in value. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">While an access easement clearly registered on title is the clearest of rights since all the public has notice of it, the holder of such a right still might wind up in court seeking an injunction to prevent blocking of the access if someone further up the access road decides to erect a locked gate or plants trees in the middle of the road. However, you shouldn't be deterred even if you don't have an easement registered in your property's favour if you and others acquired the property believing there was an access easement, and in fact have been regularly using such a road/driveway/trail/path for access since you purchased it. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">An "easement by implication" can be established in court if you can present evidence that you purchased your property thinking you had an access easement because the access road that's now in dispute in the obvious (and perhaps sole) way of accessing your property, and it's clear the original purchaser (and vendor) likely believed the same thing. These easements by implication don't require that you establish adverse possession over a period of many decades. And they don't even require absolute "necessity" - meaning no other way of accessing your property - since with waterfront property it might be possible for your opponent to claim that you're able to access the property from the water by boating into it. </span><br />
<br />
<span style="font-size: large;">If a court does find that you've got an easement by implication, you should be able to register it in your local land registry office, thus hopefully avoiding future doubts over its existence by subsequent purchasers of your property or the property over which the easement passes. </span><br />
<br />
<br />Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com7tag:blogger.com,1999:blog-6261601516039322262.post-20910519048302657012015-05-11T09:23:00.001-07:002015-05-11T09:23:37.907-07:00TOP 5 DRUG TRIAL DEFENCES THAT WORK - #1 & #2<span style="font-size: large;">Now that tax season is over, and I made it through to the end of my Canadian Taxes A to Z series of posts, I offer you something from another line of law practice that I engage in: criminal defence. I've spent of lot of my legal career first prosecuting and then defending drug offences. Along a the way I've written a few books touching on how they should be investigated, and also witnessed the defences that stand the best chance of success in leading to an acquittal.</span><div>
<br /></div>
<div>
<span style="font-size: large;">Here are the first two of my top five list of drug trial defences that work (the other three will follow in future posts): </span><div>
<span style="font-size: large;"><br /></span></div>
<div>
<span style="font-size: large;"><b>1. The drugs aren't mine. </b>In order to convict you of drug possession or possession for the purpose of trafficking, the court needs to be convinced beyond a reasonable doubt that you had legal possession of the drugs in question. Generally, that requires "knowledge" and "control."</span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;">Meaning, that if you truly didn't know the drugs were where the police found them, and such knowledge can't reasonably be inferred from the surrounding circumstances, then the court must acquit you. Likewise, even if you knew about the drugs but had no control whatsoever over the location in which they were found, the court must again acquit you.</span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;">For this defence to work, your claim that the drugs don't belong to you must be reasonable, and must completely negate knowledge and control. Meaning, the "I was just holding them for a friend" story doesn't cut it, because you'd would still have knowledge and control ("ownership" isn't a required element here). Likewise, the defence will fail if you admit to smoking a joint as a passenger in a vehicle, since you clearly had some knowledge and control. </span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;">Where it works best is if: </span><br />
<ul>
<li><span style="font-size: large;">the drugs are found in a vehicle that isn't registered to you, and you aren't driving, or can reasonably say you just borrowed the vehicle from a friend;</span></li>
<li><span style="font-size: large;">the drugs are found in clothing that doesn't belong to you (but you happen to be wearing), and you can again reasonably say you just borrowed that clothing from a friend; </span></li>
<li><span style="font-size: large;">the drugs are found in a bag that doesn't belong to you, and you have a reasonable explanation for why you have no knowledge of its contents but are are nonetheless holding it;</span></li>
<li><span style="font-size: large;"> the drugs are found in a residence where you have no access to the part of the residence where the drugs are located.</span></li>
</ul>
<br />
<span style="font-size: large;">Anyone hoping to make "the drugs aren't mine" claim work as a defence will probably need to testify in their own defence. In order to be believed, it will help if you don't have a criminal record. </span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;">I've seen the defence work best in front of juries in the international airport importing context, where for example an accused with no criminal record and good background gave heartfelt honest sounding testimony that she really didn't know how something like a kilo of cocaine wound up in her luggage. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><b>2. The Police Needed a Warrant to Search</b></span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Because drug offences are largely "victimless" crimes, meaning there's usually no one in whose interests it is to report them to the police, authorities rely heavily on intrusive investigative techniques to discover these offences. These intrusive techniques are also needed to obtain samples of the alleged "drugs" in order to test that they aren't in fact drywall compound or icing sugar. </span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;">While warrants and privacy interests existed prior to 1982, the adoption and constitutional entrenchment in 1982 of s. 8 of the <i>Canadian Charter of Rights and Freedoms</i> (the protection against unreasonable search and seizure), combined with s. 24 of the <i>Charter</i> (authorizing a court to exclude evidence obtained in violation of the <i>Charter</i>) placed a new emphasis of the protection of privacy interests of Canadians against state intrusion. The most fundamental way to protect privacy is to require the state to obtain a warrant from an independent judicial official prior to conducting a search. </span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;">Like a lot of legal things, when a warrant is and isn't</span><span style="font-size: large;"> required is not black and white, but rather occupies a realm of shades of grey. However, there is a clear pecking order of privacy interests where the greater the privacy, the more likely a warrant will be needed. In any situation where drugs are discovered through a search leading to criminal charges, it's possible to argue as part of a pre-trial </span><i><span style="font-size: large;">Charter</span></i><span style="font-size: large;"> motion that a warrant should have been obtained prior to conducting the search, and that therefore the drugs should be excluded from evidence at trial. The usual consequence of no drugs in evidence will be a collapse of the prosecution's case. </span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;">The most common situations of drugs being discovered through a police search are: (1) in a vehicle; (2) on a person or in something a person is carrying; (3) in a building. A warrant might be required to search any of those places. </span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;"><b>Warrant needed for a vehicle</b></span><br />
<span style="font-size: large;">For vehicles, police often claim that their search is "incident to arrest" and therefore a warrant isn't needed. But the law limits the scope of such searches to only relate to the reasons for the arrest. Thus police can't conduct a traffic stop, issue a speeding ticket for which no arrest would occur, and then poke around in a vehicle on a fishing expedition looking for drugs. </span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;">Police will often claim a vehicle is being searched pursuant to "consent" from the occupant. While I completely understand the psychological pressure you might be under to say yes to the police question "do you mind if I take a peek in your trunk," just say no. Either they have authority, or they don't. Saying yes won't earn you any brownie points. </span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;"><b>Warrant needed for a person </b></span><br />
<span style="font-size: large;">Searches of persons or the things they're carrying are also often justified under the "incident to arrest" banner. They key here to legality is there must be a valid arrest to start with. If not, a warrant may be required to search things being carried, like a gym bag. Usually one wouldn't obtain a warrant to search a person's clothing, but personal searches involving bodily integrity (like taking blood samples or x-rays) would almost always require a warrant.</span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;"><b>Warrant needed for a building</b></span><br />
<span style="font-size: large;">Other than the human body, buildings or portions of buildings which the public usually don't have any access to tend to have the highest expectation of privacy. This is particularly so with residences. Even if the police are already in a building for another legitimate purpose, they can't just go poking around looking for evidence - they need to get a warrant. In extreme situations, they should be "freezing" the scene and getting a warrant, rather than later claiming exigent circumstances didn't permit obtaining a warrant. </span><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;">So arguing that a warrant was needed to search wherever drugs or related evidence was located remains a key part of any strong drug charge defence. You should consult a lawyer with experience in search warrants to obtain advice about whether such a defence could work for you. </span></div>
</div>
<div>
<span style="font-size: large;"><br /></span></div>
Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com0tag:blogger.com,1999:blog-6261601516039322262.post-76353655775206744282015-04-28T00:30:00.000-07:002015-04-28T08:53:40.709-07:00Canadian Taxes A to Z (2015): U is for UCC, V is for V-Day, W is for Withholding Tax, X is for X-Mark, Y is for Year End, Z is for ZBB <span style="font-size: large;">Today is the last in the series of Canadian Taxes A to Z (2015) posts. Yes, I know you're sad. I'm sad too. But at least you can look forward to receiving that big tax refund generated through your newfound interest in Canadian tax law. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">I know I'm combing the last six letters of the alphabet into one post, rather than stretching them out into six separate posts. But we're down to the wire in Canadian Tax Filings And Payments are Due Week (CTFAPADW), and I haven't filed my own taxes yet. Plus I do have a law practice to run. So I hope you'll forgive me for the combination of the last six tricky letters of the alphabet. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">U is for for Undepreciated Capital Cost (UCC). It's very important to keep track year to year of your UCC for each capital asset (within each class) that you own. It's not enough to simply know how much you paid for the capital item, and what percentage of depreciation can be claimed each year, since each year the depreciation claimed will be a slightly smaller figure (the same percentage of a lower number), whereas in the first year the depreciation claimed will be a much small number (half the normal depreciation rate) because of the half year rule. Keep all your UCC receipts organized by class, and year of acquisition. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">V is V-Day. No, not Victory Day. No, not Victoria Day. Definitely not Valentines Day. V-Day stands for Valuation Day in tax speak. V-Day is any day when you needed to determine a fixed financial value for something that you'd owned for a while, and planned to own for a while longer, but which didn't have a readily apparent value (like a share price). </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">For example, if you bought a commercial property back in the 1960's prior to capital gains being taxable, and then planned to sell it now, you'd need to establish a value for it as of the end of 1971 after which capital gains became taxable. There may be other tax reasons for a V-Day, like making a particular election under the <i>Income Tax Act</i>. In any case, you may need to later defend your V-Day value if challenged by the CRA, so ideally you'll employ a professional to establish a fair market value. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">W is for Withholding Tax. Canadian law stipulates many situations where a payor of money is required to withhold a certain percentage of that money, and instead of paying it over to the person to whom it is owed, must remit it to the government for estimated taxes owning. The most common type of tax withholding is that of employers who are required to withhold a percentage of employee wages as income taxes, with the percentage of withholding rising with the level of the employee's wages. </span><span style="font-size: large;">Other kinds of common withholding taxes are those required by financial institutions on RRSP withdrawals, and those required on foreign residents for Canadian income. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">At tax filing time, the government may determine that there was too much or too little withholding, leading to a refund or additional taxes owing. The trick to navigating withholding rules is to try to bring yourself within the conditions where no withholding is required, or to keep the payments you receive below the threshold where a higher level of withholding is triggered. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">X is for .... well ... er .... I don't know what X is for. I've look in the <i>Income Tax Act</i>. I've studied accounting term glossaries. And none are big on the letter X. Perhaps Taxgirl (who gave me the inspiration for all these Canadian taxes A to Z posts) can help out? Her X word this year is 1040X (the name of an IRS form), so that doesn't really help in the Canadian context. In 2014 and 2013 she cited financial terms involving X, but I like her 2012 post the most: X is for X-Mark (Signature): <a href="http://www.forbes.com/sites/kellyphillipserb/2012/03/28/taxes-from-a-to-z-x-is-for-x-mark-signature/">http://www.forbes.com/sites/kellyphillipserb/2012/03/28/taxes-from-a-to-z-x-is-for-x-mark-signature/</a>. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Taxgirl quite rightly points out that a tax return in the U.S., just like a return in Canada, isn't valid unless it's signed! It's easy to forget that last step, after putting in all the up front work on the numbers. Electronic returns also need to be "signed" but there are deeming rules that you signed it if you submitted it in the correct way through the electronic portal. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Y is for Year End. Many organizations (including corporations) have off-calendar fiscal years. Often, the timing of the year-end is to coincide with a time of the year when business is slow and employees are not on holiday, and thus there are more resources available to close the year-end books. Tax consequences of having a non-calendar fiscal year can be to shift some income to a future taxation year, and thus defer tax. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">However, unincorporated individuals operating as sole-proprietors or partners can generally no longer benefit from a permanent income/taxation shift. While they might initially defer some tax in the first year of business, that tends to get picked up in the second year of business (possibly pushing the businessperson into a higher tax bracket by capturing more than 12 months of income). Definitely get professional accounting advice prior to deciding to go with a Year End other than December 31.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">Z is for Zero Based Budgeting (ZBB). Yes, not really a tax term. But like the letter X, there aren't a whole lot of Z tax terms. And zero based budgeting could ultimately affect your tax situation by increasing (or decreasing) your net revenues. The concept was first deployed on a large scale in the private sector by the Texas Instruments corporation in the 1960's in the private sector, and later championed in the public sector by Jimmy Carter (prior to his becoming U.S. president). </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">It's another of those looks great on paper, not so easy to practically implement concepts. For any business (or government), the theory goes that instead of a new fiscal year's budget starting with the previous year's budget as a base (and thus being prone to incremental budget creep), each year should start with zero, with every line item being required to be justified all over again year after year. The theory is that ZBB is a great way to eliminate waste. If you can't justify why you've got a budget line, then "poof" you're eliminated. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The problem with ZBB is the rebuilding a budget every year from the ground up can become an overwhelming, all consuming task. And valuable parts of an organization with less tangible outputs could get snuffed out, to the detriment of the entire organization. </span>Gordon Scott Campbellhttp://www.blogger.com/profile/17556319710206988285noreply@blogger.com0