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Peel BriefsThe Newsletter of the Peel Law Association

I am quite humbled and take great pride in the fact that the board has elected me as President of this important organization. It is a privilege for me to serve our members at this level and I will continue to serve the members of this organization and other stake holders involved in the provision of legal services in the Region of Peel.

I am proud to announce that in 2011, the PLA jumped over the 500 member threshold for the first time in our history. Congratulations to all.

The Peel Law Association is going through a transitional phase and we are finding that, as the population increases in our Region, the demands on our services by members and users of our facilities are increasing. As such, the costs of offering such services are also increasing. The Board, with your input, is actively looking at all options in order to ensure the organization has adequate revenues to meet your needs.

We have achieved many things in 2011 including:

• The Enlightened Litigator workshops• Several successful CPD’s • Establishment of a Real Estate Law

Section• Family Law Section Schmooze with the

Judges• Golf Day 2011• Judges’ Night 2011• An evening with Justice Kruzick• Rose Theatre production of A Christmas

CarolWe are blessed at the Peel Law Association

to have many Board volunteers who are deeply committed to this organization. In addition, I wish to thank our library staff, Melissa Firth, Maida de Vera, Julie Dobson and Wendy

PRESIDENT’SMESSAGEby Raj Sharda

UPCOMING EVENTSMock Trials

March 1st, 2nd & 8th, 2012Brampton Courthouse

iiiii

PLA Spring Social Date & Event details to follow

UPCOMING CPDsThree Hours of Professionalism

Wednesday March 14, 20124:45 pm – 8:30 pm

Courtroom 211iiiii

What the Defence Needs to KnowPart XIII – Coming Soon

Spring 2012iiiii

CPD Webinars & ReplaysRegistration details - TBA

Sessions to be held within the PLA Library & Lawyers’ Lounge

First, my deepest apologies for the tardiness of this edition of Peel Briefs. But, as they say, better late than never. The last year has been an interesting one at the Peel Law Association: the new configuration of the Lawyer’s Lounge is now familiar to all, and members and visiting counsel alike are becoming accustomed to the new swipe card system. Library staff have provided excellent additional services in the satellite location and the PLA continues to strive to provide an ever increasing array of member services.

Two CDLPA Plenaries have passed since the last edition: the May Plenary is reported here with a few highlights from the November meeting. We have also been very happy to continue our relationship with the judiciary and I am happy to see several articles from the Bench in this edition.

NOTE fROM THE EDITOR

by Frankie Wood

Dead Line for Next IsssueMay 1, 2012

continued on page 2 ......


Winter Issue2012

Number 1

PEEL LAW ASSOCIATION

INSIDE

PEEL LAW ASSOCIATIONA. Grenville

and William DavisCourt House

7755 Hurontario StreetSuite 160

Brampton, Ontario L6W 4T1Tel: 905-451-2924Fax: 905-451-3137www.plalawyers.ca

EditorFrances Wood

Managing EditorMelissa Firth

ContributorsDavid Acri

Buster BlockTejdeep ChatthaMaida de Vera

Wendy DjakalovicMelissa Firth

Vince HouvardasMarty KleinSherri MossJohn MullenRaj Sharda

Michael TweedieRae White

Frances Wood

PhotosMelissa Firth

Published byExcel

Desk Top Publishing& Printing

15 Glebe Cr., Brampton, Ontario905-792-3914

Regular Reports

Comings & Goings .... 3Criminal Corner ... 5Event Calendar ... 1From The Editor ... 1From The Sixth Floor ... 6Library Report ... 4Presidents Report ... 1

Articles

The Lawyers’Lounge ... 2E-Real Estate ... 9Recent Appointment ... 9The Klein Rant ... 10Evidence Law ... 13NCBP Conference ... 18CDLPA Paralegal Committe ... 19CDLPA Us Bar President .. 19CDLPA Treasurer’s Report .. 19CDLPA Family Law ... 20CDLPA Legal Aid Report ... 20Executor Insurance ... 20Letter To The Editor ... 21A Call To Arms ... 25Movie News ... 26Tom Carey Sworn In ... 26Golf Day ... 27

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Djakalovic on behalf of the Board, for demonstrating such a strong and ongoing commitment to the Peel Law Association members and the users of our facilities. In particular, as you are well aware, Melissa Firth has been a very strong and dedicated Managing Director of the Peel Law Association. We are very pleased with the commitment she has shown towards this organization and I would like to especially thank her for all her many efforts.

In the coming year we will be ramping up our local CPD programs to include many additional programs for solicitors as well as barristers; please stay tuned for the announcements of such programs. In order to provide an additional benefit to members, we expect to increase the difference between member and non-member registrations, so I would strongly suggest you renew, or become a member as soon as possible.

I can advise you that on behalf of our members I was able to assist in the formation of regular consultations

PRESIDENT’S MESSAGE...... continued from page 1

between the Court operations managers, process servers and the PLA to ensure that the many problems that were being experienced in court operations are being resolved. This ongoing communication has generated very positive results with respect to court filings and resolving counter delays.

On behalf of our members we are also submitting comments with respect to the ongoing review of Paralegal regulation by the Law Society.

I also wish to thank the judges of our Superior Court of Justice and Ontario Court of Justice for contributing to Peel Briefs and their ongoing assistance through the Bench and Bar committees for the constant improvements to the administration of justice in our jurisdiction.

Once again, I would like to take this opportunity to thank the Board for their ongoing commitment and volunteer services.

Situated high above the hustle and bustle of the busiest courthouse in Ontario, a pair of peregrine falcons decided to make the Brampton courthouse home. The nesting of the newest Brampton residents resulted in two eggs, one of which hatched in the late summer of 2011.

The courthouse staff received an invitation to attend the banding of the new chick in the cafeteria in mid July. Representatives from the Canadian Peregrine Foundation

IT’S NOT THE LAWyERS’ LOUNGE, bUT IT’S HOME!!by Melissa Firth

and the Ministry of Natural Resources were on hand to perform the banding procedure and to officially name the falcon – Courtney. The peregrine falcon parents, Milton, the father who is from Pennsylvania and the mother, Truss from Burlington were distracted throughout the process although they could clearly be heard voicing their disapproval over all the excitement from the courthouse rooftop.

Peregrine Falcons

COMINGS ANDGOINGSby Maida de Vera

David Acri, Barrister & Solicitor, is now located at 57 Mill Street N., Suite 209, Brampton, L6X 1S9, telephone: (905) 457-2274, fax: (905) 457-2284.

Atul Ahuja of Atul Ahuja Law Office is now located at 145 Clarence Street, Unit 22, Brampton, L6W 1T2, telephone: (905) 455-2885, fax: (905) 455-0885.

Ramon V. Andal of Andal Law Office is now located at 4307 Village Centre Court, Suite 203, Mississauga, L4Z 1S2, telephone: (905) 270-1379, fax: (905) 270-1384.

Rookmin baljohn-Ramcharan, Barrister & Solicitor, is now located at 1018 Finch Avenue W., Suite 306, Toronto, M3J 3L5, telephone: (416) 663-1010, fax: (416) 663-1313.

Saadia Ali bokhari, Barrister & Solicitor, is now located at 7900 Hurontario Street, Suite 306, Brampton, L6Y 0P6, telephone: (647) 347-4116, fax: (416) 907-3711.

David J. borg of Day + Borg LLP is located at 93 Queen Street S., Mississauga, L5M 1K7, telephone: (905) 826-5670 ext. 228, fax: (905) 826-5673.

Peter M. Daigle of Sheldon Huxtable Professional Corporation is now located at 180 Dundas Street W., Suite 1801, Toronto, M5G 1Z8, telephone: (416) 595-1593, fax: (416) 595-5959.

Walker R. Dalzell, Barrister, Solicitor & Notary Pubic, is now located at 6505C Mississauga Road, Mississauga, L5N 1A6, telephone: (905) 817-1900, fax: (905) 817-1978.

Michael J. Day of Day + Borg LLP is located at 93 Queen Street S., Mississauga, L5M 1K7, telephone: (905) 826-5670 ext. 222, fax: (905) 826-5673.

Colleen Grant of The Corporation of the City of Brampton is now located at 5 Ray Lawson Boulevard, Brampton, L6Y 5L7, telephone: (905) 874-2694, fax: (905) 874-2692.

Nida Hussain of Kain & Ball is now located at 1290 Central Parkway W., Suite 402, Mississauga, L5C 4R3, telephone: (905) 273-4588, fax: (905) 273-4585.

brian C. Irvine, Barrister & Solicitor, is now located at 2978 Islington Avenue, Suite 204, Toronto, M9L 2K6, telephone: (416) 259-3391, fax: (416) 259-3102.

Todd Jenney of Todd Jenney Family Law is now located at 57 Mill Street, Suite 209, Brampton, L6X 1S9, telephone: (905) 457-6159, fax: (905) 457-2284.

bal Krishna of the Law Office of Bal Krishna is now located at 30 Intermodal Drive, Unit #6, Brampton, L6T 5K1, telephone: (905) 453-4206, fax: (905) 453-8701.

Zaheer Lakhani of Bernardi Human Resource Law is now located at 1569 Hurontario Street, Suite 2, Mississauga, L5G 3H7, telephone: (905) 486-1991 ext. 227, fax: (905) 486-1992.

Malicki & Malicki barristers, Solicitors, Notaries is now located at 650 Lakeshore Road E., Mississauga, L5G 1J6, telephone: (905) 274-1650, fax: (905) 274-1652.

Ranbir S. Mann of Wiley & Mann is now located at 205 County Court Boulevard, Suite 100, Brampton, L6W 4R6, telephone: (905) 454-5600, fax: (905) 454-4463.

David Markowitz of Markowitz & Knowles is now located at 53 Village Centre Place, Suite 100, Mississauga, L4Z 1V9, telephone: (905) 890-1800, fax: (905) 890-8400.

W. Todd Moore, Barrister & Solicitor, Notary Public, is now located at 10 Kingsbridge Garden Circle, Suite 704, Mississauga, L5R 3K6, telephone: (905) 502-3506, fax: (905) 502-3507.

John Mullen of Keyser Mason Ball LLP is now located at 4 Robert Speck Parkway, Suite 1600, Mississauga, L4Z 1S1, telephone: (905) 276-0407, fax (905) 276-2298.

Gurdeep S. Nanua of Romano Law Firm is now located at 4580 Dufferin Street, Suite 408, Toronto, M3H 5Y2, telephone: (416) 661-0359, fax: (416) 661-4377.

Raymond E. Sharpe, Barrister & Solicitor & Notary Public, is now located at 1325 Eglinton Avenue E., Unit 210, Mississauga, L4W 3E6, telephone: (905) 624-5299, fax: (905) 624-5297.

Saman Wickramasinghe of Lockyer Campbell Posner is now located at 180 Dundas Street W., Suite 1515, Toronto, M5G 1Z8, telephone: (416) 847-2560 ext. 239, fax: (416) 847-2564.

PLEASE WELCOME NEW 2011 MEMbERS TO THE PLA:Uzma Ashraf of the Law Office of Uzma Ashraf is

located 25 Watline Avenue, Suite 503, Mississauga, L4Z 2A1, telephone: (647) 382-2254.

Mariola bednarska of Bednarska Law PC is located at 1430 Hurontario Street, Suite B, Mississauga, L5G 3H4, telephone: (416) 786-3798, fax: (905) 271-1869.

Mukesh bhardwaj of Bhardwaj & Associate Lawyers PC is located at 7500 Hwy 27, Suite 7, Vaughan, L4H 0J2, telephone: (905) 856-6677 ext. 237, fax: (905) 856-8077.

Cheryl Chambers of Cheryl Chambers Barrister & Solicitor is located at 101 Dundas Street W., Suite 202, Whitby, L7N 2M2, telephone: (905) 668-2426, fax: (905) 668-2350.

Shawn Chowbay of Lawrence, Lawrence, Stevenson LLP is located at 43 Queen Street W., Brampton, L6Y 1L9, telephone: (905) 451-3040 ext. 6202, fax: (905) 451-5058.


The PLA library staff administered over 2,000 photo identification swipe cards following activation of the PLA swipe card access system in January 2011. Even though it is now early 2012, we continue to process identification cards routinely. Such numbers impart great emphasis on the fact this is a jurisdiction full of activity and the PLA facilities are in high demand. The PLA facilities, both lounge and library, continue to experience consistent utilization of resources and space.

The PLA Membership renewal packages were distributed to all 2011 members in late December. Each renewal package contained a discount coupon (green) available for use within the Satellite Library Office located in the Lawyers’ Lounge. This coupon is redeemable on all PLA merchandise (already discounted prices for PLA members) as a renewing member throughout 2012. If you have not yet taken the opportunity to review the merchandise please take a moment at the upcoming AGM or during your next visit to the courthouse. The PLA merchandise includes such items as cufflinks, golf shirts, court tabs, umbrellas, pens and USB key.

Please be sure to check this package to see if you have received your 2012 PLA membership card. We will continue to distribute cards on the evening of the Annual General Meeting and the rest by regular mail after the event.

LIbRARy SERVICES

Please take a moment to review the back cover of this issue which provides a list of library services and membership benefits. It seemed fitting to remind our members of the many services and resources the PLA provides as we advance into 2012. The new book list, enclosed as a separate insert, outlines numerous new titles recently acquired for the PLA library collection. Aside from the enclosure I wanted to draw your attention to several popular titles in the collection including:

• The Canadian Encyclopedic Digest (4th edition loose-leaf)

• Child Protection Law in Canada (2nd edition)

• Criminal Spectrum (online)

• DivorceMate (online) – free to PLA members!

• Halsbury’s Laws of Canada (1st edition, full volume set)

• The Law of Bail in Canada (3rd edition loose-leaf)

• O’Brien’s Encyclopedia of Forms (11th edition loose leaf) & O’Brien’s Online

• The Practitioner’s Criminal Precedents, (3rd edition) – includes CD-ROM

In May 2011, I travelled to Calgary to attend the annual Canadian Association of Law Libraries (CALL) conference. The weather was terrific but the mosquitoes were unfortunately already out in full force! The educational program began with an interesting presentation on infringements to property rights of individual property owners. Other topics and

presentations included collection development in the digital age; project management in law firms; the development and access of eBooks; as well as, the challenges of record and information management.

In late October 2011, Library Technician, Maida de Vera and I attended the Conference of Ontario Law Associations’ Libraries (COLAL) in Toronto. The opening reception was held once again at the distinctive independent bookstore, Nicolas Hoare Books on Front Street. The information sessions included such topics as managing electronic resources, marketing library services, best accounting practices, and value-added reference services. There was a question and answer session with representatives of the LibraryCo Board of Directors and a dinner at the Law Society of Upper Canada.

In addition to the education and plenary sessions, I also attended the Ontario Courthouse Librarians’ Association (OCLA) meetings in Calgary and Toronto. Both conferences continue to provide ongoing opportunities to discuss changes within the library profession and the legal publishing industry. These professional development opportunities also allow staff to share ideas and meet colleagues from across the province and across the country.

The PLA will be providing CPD webinars and video replays within the library and the lawyers’ lounge. Our first webinar is scheduled for Wednesday February 29th in the PLA Library. The session will begin at 1:00 pm and last for one and a half hours. More details can be found in the flyer circulating electronically and which is also posted on the bulletin board in the PLA Lawyers’ Lounge. Space will be limited so register early!

The PLA Board of Directors and Library Staff will continue to work hard to maintain a current, authoritative and vital collection on your behalf. As always, we invite the input of our members to continue to make suggestions for new materials and resources.

LIbRARIAN’S REPORTby Melissa Firth

NOTE fROM THE EDITOR

You will also find announcements regarding judicial comings and goings, upcoming CPDs and other information of interest to our members and hopefully to all local lawyers. We hope that you find this edition of Peel Briefs worth the wait, and undertake not to keep you waiting so long for the next one.

I wish you all a winter filled with busy practices, interesting cases and clients, good times with family and friends and maybe, perhaps, a little skiing or snowboarding before spring arrives.

...... continued from page 1

CRIMINAL CORNER

The Peel Law Association’s continuing series, “What the Defence Needs to Know” continued in full swing on June 9, 2011, with a sold out venue for the eleventh installment of the series, titled “Three Hours of Ethics”. This seminar was somewhat more interactive than our usual “What the Defence Needs to Know” format, designed to facilitate the three hour ethical/professional development CPD requirement. The seminar was actually approved by the Law Society for four hours, which meant that the attendees could also apply the extra hour to their substantive requirement in addition to the required three hour professional development component for 2011.

Our panel which was especially strong, included Justice Elliot Allen, defence counsel Jack McCulligh, Alison Mackay, Carol Letman, Dhaman Kissoon, Avtar Bhangal and Crown Attorney Steve Sherriff. A total of seven scenarios involving ethical dilemmas were put to the panelists by myself and co-chair, PLA Director Rae White.

The scenarios involved topics such as conflicts of interest, confidentiality, withdrawal of services, competency of counsel and dealing with the media. The analysis of each scenario repeated the same format for each scenario throughout the seminar.

A particular panelist (each was given a specific scenerio in advance) addressed the scenario first with a ten minute presentation. The panel was then invited to join in to the analysis, leading to different perspectives and sub issues. Finally, the audience was invited to join in to the discussion on each scenario which led to additional points and perspectives being raised.

The interactive format proved to be effective and well received by the panel and attendees and may serve as a model for future seminars. Attendance at this defence seminar provided the irreplaceable component of the analysis from the panelists in an interactive setting. However, if you are looking for answers to additional questions involving ethical dilemmas, you need look no further than the publications available in the PLA library which include:

Ethics and Canadian Criminal Law by Michel Proulx and David Lyton Lawyers and Ethics: Professional Responsibility and

Discipline by Gavin MacKenzie Legal Ethics and Professional Responsibility by Allan Hutchinson Professional Conduct for Lawyers and Judges by Beverley G. Smith

WHAT THE DEfENCE NEEDS TO KNOW -PART XI - Three Hours of Ethicsby Vince Houvardas

In October 2011, the PLA presented the 12th Seminar. What the Defence Needs to Know continues to provide ongoing homegrown continuing education to allow local bar the opportunity to fulfill its CLE requirements without having to take the long journey to downtown Toronto or having to be faced with their computer screen as the Peel Law Association continues to provide relevant and interesting updates on criminal law and other topics which affect criminal lawyer practitioners.

The last defence needs to know seminar, Part XII – Strategies & Tactics, gave attendees an opportunity to have some strategies and tactics that they can utilize in their day to day practice. There were a number of speakers who attended firstly, the Honourable J. Elliott Allen, criminal practitioners, Michael Moon, Alison Mackay, and Lawrence Ben-Eliezer, and finally Will O’Harra who stepped into the shoes of Doron Gold to give a small view point of dealing with stress when time is short and the pressure is high.

“What the Defence Needs to Know” seminars are now in their eighth year with the expectation that they will continue for some time. It is a real privilege to be able to offer the criminal bar in the Region of Peel an opportunity to attend with friends and colleagues and at the same time to keep current with updates in what’s happening in criminal law and what the defence lawyer continues to need to know. The seminar touched on topics that were both of interest to both new practitioners and seasoned veterans. There is always an opportunity to learn something new.

The next “What the Defence Needs to Know” should be publicized shortly.

WHAT THE DEfENCE NEEDS TO KNOW PART – XIIby Sherri Moss

Todd Jenney Family Law

Todd Jenney, B.A, LL.B., LL.M.

Barrister and Solicitor

57 Mill Street, Suite 209 Tel: (905) 457-6159Brampton, ON L6X 1S9 Fax: (905) 457-2284

[email protected]

fEEDbACK fROM THE bENCHWe have offered to provide suggestions on advocacy to

Peel Briefs. Our offer has been accepted, and those of us on the sixth floor of the Brampton Court House hope to provide a regular column on topics that counsel may find useful.

We recommend Ontario Court Room Procedure by Donald S. Ferguson (2009, Lexis Nexis). This is a very readable resource for use in the Superior Court particularly, but also helpful for any level of court. It covers every step of the trial procedure in criminal, family and civil litigation. Many of us refer to it regularly.

The recently published Evidence in Family Law (Edited by Harold Niman and published by Canada Law Book) will also be of assistance to those in the family law bar.

For help with drafting factums, Eugene Meehan’s “Write to Win” in 2010 36 Advocates Quarterly, 389 may be very instructive.

For civility issues, Principles of Civility for Advocates and Principles of Professionalism for Advocates produced by The Advocates Society is an excellent resource.

For both insight and whimsey, we recommend the many columns written by the late Justice Marvin Catzman in the Advocates Society magazine

PLEADINGSAlthough many software programmes produce single-

spaced 10 point type, there is no requirement that counsel produce documents this way. It is difficult for the presiding judge to properly review pages and pages of single-spaced small print. Most of us are older than most of you. We would be assisted if pleadings were double-spaced and in larger print.

Confirmation forms are vastly improved from the recent past; however, confirmations still appear with “all issues” and do not fill in the appropriate tabs to be read. This makes it very difficult for the presiding judge to be properly prepared to hear argument. We really do rely on the confirmations, and your work is worthwhile and appreciated. Failure to properly complete the confirmation forms means that the judge will have spent unnecessary time preparing for some cases, leaving less time to prepare for others.

All pleadings and affidavits should be proof read. Careless spelling and grammar errors will detract from your argument.

Consent orders should not be drafted from Minutes of Settlement or Separation Agreements without thought. The court cannot order someone to agree or waive rights. There are many terms in consents and Separation Agreements that are not properly court orders. It does not suffice to simply cut and paste from the consents into the court order. Real drafting must be carried out.

Affidavits for alternative service orders should come from the client. Generally, it is not satisfactory for a clerk or a lawyer to tell the court that the client does not know where the respondent resides. Such an affidavit may well put

counsel in harm’s way if the client is not telling the truth.Affidavits that are replete with inflammatory language

and hostile rhetoric are not helpful to the Court. The Judge is looking for relevant facts and information, and aggressive finger-pointing is distracting at best, aggravating at worst.

ADVOCACy During oral submissions, or objections at trial, only

one counsel should be standing at a time. For objections, examining counsel should sit when the objection is made. Objecting counsel should make their submissions and sit down. Examining counsel should respond and, if necessary, objecting counsel may reply. Objections at trial are a form of oral argument. They are not to be an ongoing discussion between counsel and the court.

Counsel should make all submissions through the judge. There should not be a dialogue between counsel during the hearing.

If both counsel are speaking at once, they are both wrong. If counsel is relying upon case law, that case law should

be provided to opposite counsel well before the argument starts. It should not be handed across as submissions are made.

Civility and courtesy to both other counsel and the Court are the hallmarks of superior advocacy. Over-identification with one’s own client can blind counsel to the real issues, and can decrease one’s effectiveness as an advocate.

We hope that these suggestions will be of assistance to both the bar and bench, so that we can all assist the litigants with their concerns.

fROM THE SIXTH fLOOR

Court staff have recently received training in the preparation of orders for unrepresented parties and in reviewing orders prepared by counsel. Many orders get rejected because of poor drafting, mistakes, missing standard terms and for a variety of other reasons. A recent sampling of lawyers’ draft orders indicates that there are a number of problems common to many of the orders submitted.

Here are some hints to help you and your staff in the preparation of court orders and prevent rejection by Courts Administration!

1. Do not include reasons. Watch out for wording which may appear in endorsements or Minutes of Settlement such as , “because the respondent is subject to

restrictive bail terms” or “due to the applicant’s lack of appropriate accommodation”.

2. Do not include items which are really directions to Courts Administration such as “Order to be expedited” or “approval of draft order waived”.

JUSTICE bALDOCK’S TOP 10 TIPSfOR PREPARING fAMILy COURT ORDERS

From The Sixth Floor continued on page 7 ......

fROM THE SIXTH fLOORJUSTICE bALDOCK’S TOP 10 TIPSfOR PREPARING fAMILy COURT ORDERS

...... continued from page 6

3. Avoid colloquialisms such as “kids” “mom” etc., I am also not a fan of terms such as “pick up” and “drop off” which always makes me think of a child left by the side of the road or outside the front door. Preferred terms would be “collected and returned” or “transferred”.

4. Common acronyms or short forms such as CAS, FRO or OCL must be set out in full at least once. Remember not everyone is familiar with our terminology.

5. Do not include terms such as “Support Deduction Order to Issue” or “Order for Children’s Lawyer” These are stand alone orders and should not form part of any other order.

6. Make sure all persons referred to are clearly identified by name. Example: “the respondent shall not leave the child with her mother”. Whose mother? The respondent’s or the child’s?

7. Be clear as to whether the order is temporary or final or part temporary and part final. Generally any issue which has been determined and which will not be returning for further consideration is final. An order for substituted service is final as are most procedural orders.

8. Make sure some text appears on the signature page. Draft orders with blank signature pages will be rejected by Courts Administration

9. Strict adherence to the wording of an agreement can cause problems. We often see Minutes of Settlement with terms such as “the parties agree to seek counselling” . Remember the court cannot order people to agree to something. The order should read “the parties shall seek counselling”. Also it is common for a document to refer to “these minutes” or “this consent” which, when forming part of an order should be changed to “this Order”. Orders should reflect the intent of the agreement but not necessarily adopt its language in every respect.

10. Beware of the cut and paste feature in word processing. As an example, notices of motion often preface each item of relief sought with the words “an order that….” The endorsement may then simply state “an order to go in terms of paragraphs 3 and 4 of the notice of motion” . When copying the terms from the notice of motion to the order the words “an order that” become redundant as all court orders begin with the words “This court orders that:”

In short – READ IT, READ IT, READ IT! Remember all orders must be:

• Clear and unambiguous• Grammatically correct• Accurate and complete• Formal but not full of legalese• Easily understood by the lay person• Enforceable

The Early Case Conference system was set up in January of 2008 in Brampton and Milton. The system was set up to ensure that parties could not use the unavailability of early regular case conference dates to delay the inevitable, such as payment of child and spousal support, and access to children.

Recently, while presiding over Early Case Conferences, I noticed that parties and counsel were not complying with the Early Case Conference Direction. The result is that the Early Case Conference lists are clogged with matters that do not properly belong on the list. As a result, matters that are properly on the ECC list are unnecessarily delayed.

A maximum of 15 ECC’s are scheduled for most Mondays. The Early Case Conference Direction from January 7, 2008 remains in effect.

As with all court proceedings, the proper completion of Confirmation Sheets is essential. Please spell out the issues (never rely on “all issues”). Ensure that the information on

EARLy CASE CONfERENCESby Justice Van Melle

the Confirmation Sheet is accurate. Ensure that the time estimate does not exceed 15 minutes in total.

You cannot have an ECC if you have already had a case conference. If you have already had a case conference you must move on to a regular case conference or a settlement conference.

Make sure that:

• Your case conference brief is limited to five pages double spaced. Focus on the issues that you would like to have addressed at the ECC.

• You have discussed settlement of the issues to be addressed at the ECC with the other side.


fROM THE SIXTH fLOOR...... continued from page 7

Effective immediately upon publication, the Superior Court of Justice will conduct Early Case Conferences according to the following criteria.

1. The new procedure will start on Monday January 7, 2008, and will be evaluated after 6 months. The Early Case Conferences can be scheduled starting December 17, 2007.

2. Litigants who are represented by counsel, and those who are self-represented, can participate in the conference.

3. The case conferences will be held on Mondays, and be listed as “Early Case Conferences” (ECC).

4. Fifteen Early Case Conferences will be scheduled for 10 a.m.

5. Both parties must certify they have fully discussed the issues to be litigated with the other side before their attendance at court for the ECC, or have attended court not later than 9 a.m. on the scheduled date to fully discuss the issues. If the parties have not discussed the issues fully in advance of 10 a.m., the conference will be held down until the issues have been discussed.

6. Litigants are required to attend the ECC. 7. Each Early Case Conference will be limited to a total

of 15 minutes for all submissions, discussion and endorsements.

8. The litigants must file updated financial statements, Case Conference Briefs not to exceed 5 double spaced pages setting out their positions, and must not include lengthy schedules.

9. The parties are limited to factual assertions contained in the written material, and will not be permitted to add additional facts in submissions.

10. The presiding judge will determine, from reading

in advance of the court appearance the material filed, if the issue(s) is(are) one(s) that require(s) a determination at that time.

11. At the outset of the conference, the presiding judge will advise the parties of his or her decision regarding whether the issues require a determination at that time. The parties should not anticipate being given court or conference time to persuade the presiding judge on this threshold issue.

12. The only issues addressed at the conference will be issues for which the litigants wish to bring a motion, and the presiding judge has decided will require a determination at that time. It is anticipated that issues such as financial production, interim support, access regimes, exclusive possession and mutual non-restraining orders could be addressed at the ECC.

13. Under no circumstances will the presiding judge: a. deal with any issues that do not require a

determination at that time; b. agree to conduct further case or settlement

conferences; or c. direct an expedited regular case conference.

14. Where a list “collapses” or ends before the end of the court day, the judge will not provide additional time to any case.

15. If the presiding judge is persuaded that “case supervision” is appropriate, the litigants may apply in writing to the Regional Senior Judge for the assignment of a judge.

16. Confirmation forms must be served and filed in accordance with the Rules.

17. Litigants who schedule ECCs will not be permitted to schedule a regular case/settlement/trial management conference until the ECC and any subsequent motion on the ECC issue(s) is(are) completed.

18. Litigants who have scheduled regular case conferences may schedule an ECC, but in order to do so, their previously scheduled case/settlement/trial management conference will be vacated.

PRACTICE DIRECTION REGARDING EARLy CASE CONfERENCESIN fAMILy PROCEEDINGS IN bRAMPTON AND MILTON - CENTRAL WEST REGION


fROM THE SIXTH fLOOR...... continued from page 8

Counsel attending OCJ family matters are reminded that 1. Counsel are required to fax a Form14C to the court in

advance of every appearance, with no exceptions. 2. If an adjournment on consent is sought and three

dates are provided on the Form 14C (such dates to be obtained from the trial coordinator in advance for that particular judge), counsel and parties are not required to attend to speak to the adjournment request.

3. If a confirmation form is not sent, the matter will go to the bottom of that day’s list. As paper can go missing at the courthouse, counsel should ensure they have the fax confirmation with them to avoid being penalized if they did fax the form. In a recent case, Justice Pawagi gave further direction

regarding confirmation forms. In that case, counsel had attached an 11 page document entitled “Confirmation Summary” to the confirmation form. It was in the form of a factum and contained argument on the issues, presented as facts items that were in dispute, and included attachments in the form of correspondence between counsel.

Opposing counsel objected. The grounds for the objection were that this is an unfair practice as there is no time and no avenue to respond to such a document. The response was that the summary is meant to assist the court by providing up to date information.

The court ruled that it is not proper to attach any document to the Form14C. The proper avenue for such additional information is a case conference brief, sworn affidavit with attached exhibits, or a factum, depending on the nature of the appearance. If a party seeks to file urgent up to date information permission can be sought to file in court. Using the confirmation form in essence to fax information directly to the judge and thus bypass procedural and evidentiary requirements is improper.

MESSAGE fROMTHE ONTARIO COURT Of JUSTICEby Raj Sharda

The world of real estate is scary enough. Now there is “e-real estate”. Agreements are faxed and emailed. Signatures are electronic. Registration is electronic. You have to make sure your client is not an electronic figment of someone’s evil imagination, as many clients now “shop” for lawyers by way of seeking email quotes for real estate services.

Scams are continuing to be a part of the landscape, and LSUC and LawPro have hundreds of files on scams and attempted scams. The one where money is paid to a lawyer in trust as part of a civil/family/debtor matter, and then bounces days later after the lawyer has cut a cheque from it, continues to abound and lawyers are still getting caught by it. The obvious variation is the fraudulent closing cheque written at the last moment by the purchaser that funds the deal and the lawyers both disburse funds based on this cheque.

Practitioners must be careful about the advice they give to possible e-clients. Recently a case was decided in New Brunswick in which emails between a possible vendor, purchaser and lawyer over the course of three days were held to constitute a binding contract, even though no Agreement of Purchase and Sale was ever signed. In Ontario, we have the Electronic Commerce Act, which governs how electronic business dealings are to be dealt with. Thankfully real estate is an exemption under the Act, but it may be a matter of time before this type of thing happens in Ontario. Below is the link to that legislation.

www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_00e17_e.htm”http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_00e17_e.htm

It is also crucial to be aware of the LVTS system. The Large Value Transfer System is a form of certification of wire transfers coming into lawyer’s trust accounts. I am assured by my banker that in Canada the top 5 banks all use LVTS and that the money that comes from them has undergone a process of due diligence. Others advise that LVTS isn’t always unless expressly asked for: it is best to call to be sure. Not necessarily so for money coming from second and third tier lenders. Anyone receiving a wire from anywhere other than a big 5 bank, should take the time to call the banker to ensure that the due diligence was performed BEFORE cheques are certified based on those funds. Below is the Bank of Canada link for more information.

www.bankofcanada.ca/financial-system/payments/c a n a d a s - m a j o r - p a y m e n t s - s y s t e m s / ” h t t p : / / w w w.bankofcanada.ca/financial-system/payments/canadas-major-payments-systems/

Fraud artists are getting increasingly sophisticated: in the e-real estate world, the advice is “watch your back, your front, and your side to ensure that you, and your legitimate client, are protected.”

E-REAL ESTATEby David Acri

RECENT APPOINTMENT IN THE REGION Of PEELSuperior Court of Justice – brampton

The Peel Law Association offers congratulations toThe Honourable Meredith Donohue

on her recent appointment to theSuperior Court of Justice in Brampton.

The swearing-in ceremony took place onDecember 22, 2011

in theA. Grenville and William Davis Court House.

What exactly is a “rant,” or if you’re actually doing it – “ranting?” The readers should know, as lawyers and judges, seem to do it best! Ranting is... well, it’s talking about random stuff; jabbering on and on often seemingly at random. Miraculously, if the speaker is even slightly intelligent, it can actually sound good! When I first introduced the “Klein Rant” column, I decided that, short of being found in contempt, I would put to ink, short missives of what I think we all so often ponder in our hearts, but are afraid to say out loud.1 And with that, here is my latest rant.

THE QUEST fOR THE SuMMuM BOnuM(Basically) the quest for the summum bonum (Latin: the

highest good) is an expression used in medieval philosophy to describe the ultimate importance; the singular and most ultimate end which human beings ought to pursue. Many of us - judges and lawyers alike, constantly search (most times subconsciously) for that place in time and space where we can satisfy the question: “What is or what does it mean to be a good lawyer or a good judge?”

Throughout the years, I’ve struggled with this question. Much to my personal chagrin, after so many years of doing law, I am constantly reminded of my finiteness, lack of knowledge and my inability to solve the most basic of problems concerning human nature (mostly in controlling my tongue in coping with nasty lawyers and recalcitrant judges!).

Please understand, as you plot your way through this, that I am not, for a moment, negating the fact (the very important fact) that as a lawyer and as a judge, you need to know what you’re doing. You do need to know the law. However, I submit that before you can be good at anything, there are certain required ingredients or the bread will not rise. When I size up in my mind what a good judge or a good lawyer is, I always ask myself first: “is he or she a good person?”

People come to us, whether in our offices or in our courtrooms, with a lot of “drama” in their lives. The majority of the time, there really isn’t that much law there; rather the complexity of human nature caught in conflict, trying desperately to bring resolution. Wow! Isn’t it so easy to lose sight? As directors in the legal scheme of things, we have the privileged position to effect real change within despair and all too often, we get distracted by our own need to either prove a point or dismiss what is truly at the heart of finding a remedy. At times, we may not have answers, whether we are presiding over a case or defending a litigant. Yet, instead of stepping back a moment, in formulating a “response,” we “react” and potentially create a greater disaster.

With that in mind, here are a few suggestions which I think will make us “good” stewards of our legal system.

THE KLEIN RANT by Marty Klein

1. LISTEN Listen to the “heart” of others – all the “players,”

including clients, lawyers and judges. You’ll be quite surprised when you incorporate “active” listening into your life. This involves not only listening to the other person’s words, but also their nonverbal expressions . We all come from different places in life. The famous newscaster, the late Paul Harvey, used to say: “… and now for the rest of the story.” There is always a story behind the story. People are always motivated by some other intention or hidden agenda. When you can learn to get into those (often hidden) places, you will begin to know how to address the real issues at hand. Know your opponent! Getting inside the “other side’s” mind, whether it be a lawyer, unrepresented litigant or a judge, will give you a whole new insight into mediating or litigating.

Jean-Baptiste Molière was a 17th century French playwright and actor. He is considered to be one of the greatest masters of comedy in Western literature. The Misanthrope, one of his most famous short plays, contains these timeless words: “Let us torment ourselves a little less about the vices of our age and be a little more lenient to human nature.”

The law, I am told is about “reason,” not “emotion.” After all, if we really wanted to learn about emotion, we would have spent our days studying psychology and not the law. Instead, law school taught us how to “think like a lawyer.” Looking back at my years in law school, followed by twenty-seven years in the business of law, I have come to wonder if I ever did get it. Truth is… I feel very much like an outcast amongst most of my colleagues, and coming to feel quite vulnerable and distressed over the way in which law is being practiced and administered today.

As lawyers and judges, we focus on what is visible – what is logical, rational and factual. Yet, we give little thought to what lies underneath; where dwells the emotion. We choose to ignore this aspect of human nature at the peril of “doing justice.”

People may believe they only need our intellect and our legal knowledge. “Let the judge decide!” However, I truly believe that what people really want and, in fact, deserve is a sense, despite our brief encounters, that we are truly present to them; that we are “connecting,” ; interested and not passing judgment (with a lowercase “j”) and that they are more than just another case on the docket.

2. bE PREPARED Never, ever, assume anything. You can never

prepare enough. I am finding that the longer I 1[A special thanks to Justice Steven Clark, who unintentionally (and he’ll be surprised to hear me say this) encouraged me to write this “Christmas 2011 offering.”] continued on page 11 ......

practice, the more I know, I don’t know. Keep up with the law. Lawyers, know your client and know their case and to do so, you must approach their case from all angles; both the positive and negative aspects. Believe me, judges know when you are prepared (and not!) and will consequently treat you with the respect or lack thereof accordingly.

3. KEEP SILENT/KEEP SWEET/KEEP STEPPING I learned a valuable lesson when I was in law

school and part of an extremely active Student Legal Aid Society. A lawyer who befriended me, told me: “Marty, if there is one thing that you take away from your three years at law school, it’s this - lawyers get paid to take #@!!.” I have never forgotten this advice. But you know what? We can keep silent and be sweet and keeping stepping – despite it all, and in turn, preserve and maintain our dignity. There are many times when we will need thick skins, but please, never let the harshness of the legal system change who you are as a person. I’ve seen this all too often.

Lawyers (and judges please hear this) should never disrespect a judge, even if he/she does not deserve respect. However, we should never cower and run. “With the greatest of respect” for the Bench, we need to stand our ground, respectfully and politely. Being a judge is not just a “high calling,” it is a gift and all too often it irks me when I see the lack of respect that some members of the judiciary have for lawyers, even if a lawyer does not deserve respect.

4. REPUTATION, REPUTATION, REPUTATION Now notice, I did not state: compromise,

compromise, compromise. I believe that you can stand your ground, no matter the circumstances and above all else, maintain your reputation. Just as lawyers gossip about judges, judges talk about lawyers. If you maintain a good reputation, both amongst judges and lawyers, when you do say something, they will listen.

5. bE NICE! I tell clients that I feel as though I live in two

worlds: The “legal world” and the “real world.” These two worlds seem, at times, diametrically opposed to one another, causing me to walk about in a schizophrenic daze. As lawyers and judges, we are professionals, but we are also people. We come to the table or bench with our own histories, many times cluttered with varied and complex baggage. The baggage we each carry affects our disposition and the type of people we are, in our work and in our interaction with others.

There is almost too much written about our need as lawyers and judges to act with professionalism and civility. The Law Society of Upper Canada has

dedicated pages to the subject. My read on all this is simply put: If we were all “nice” to each other, we would be “civil.” We can produce rules and models of professional conduct, but the reality remains – you cannot legislate niceness.”

I believe (despite clients’ all too often beliefs) that a lawyer can be nice with opposing counsel without weakening his/her position. Judges can be strong without sarcasm. Unfortunately, and very sadly, both groups of people can make our lives quite miserable at times. Alas emerges my infamous question put to all the “meanies”: “Why are you so mean to me?”

Many lawyers and judges are all too quick to justify being sharp, even rude, because we’re all pressured or stressed. Being nice – even a simple “thank you” builds relationships. You can still represent a client’s interests and be nice. Conversely, when you decide to be nasty, guess who pays? − the client. Accept it or not – it will take a toll on you.

Can a lawyer be nice and still be an effective advocate? Can you be amicable, friendly and cooperative and still be strong? I submit that the answer is a resounding “yes!” Equally, I apply this to the judiciary. How many times have you walked out of a courtroom, angry, frustrated and dejected, after some judge lashed out at you and treated you in a humiliating and demeaning manner?

How many times in a day do we interact with opposing counsel, who are being very confrontational and aggressive? Although we know that we’re supposed to be professional and polite, there are those lawyers who make you so angry, frustrated and anxious, that the only way you think you can survive is by responding in kind. We know we need to resist this urge, yet oftentimes, we do not.

Many lawyers believe that acting as outrageously as their clients is important, so that their clients feel that they are being well-represented. I totally disagree! Whenever I see lawyers conducting themselves in this manner, I cannot help but think that they have not informed their clients that it is much better that they remain in control of their demeanor and emotions, as incivility will hurt their cause, polarize the parties and settlement will not be reached. Clients need to be convinced that your interaction with opposing counsel ought to be more like a chess game than a bar room brawl.

Being nice is powerful. Being respectful is powerful. And being cooperative exudes confidence, not insecurity. It is easy to be critical of unprofessional conduct by your opponent, but be careful not to excuse your own behavior in the

THE KLEIN RANT ...... continued from page 10


process. If you are baited – resist it and don’t respond in kind. The baiting will not continue if it has no effect on you. The Social Validation Rule states that people will react to others by copying their behaviour. If you act well towards others, then it will encourage the same behaviour from them. Similarly, the Likeability Rule states that people will more often say “yes” to someone they like, as long as the contact is positive rather than negative.

6. bE COLLAbORATIVE I’ve been trained in the Collaborative Process.

It is a most excellent way to resolve disputes. Yet, we ought to be collaborative in all of the manners in which we practice and in the way we deal with others. All lawyers ought to have the shared belief that it is in the best interest of the parties to avoid adversarial proceedings, to commit themselves to resolving their differences with minimum conflict and to work together to create shared solutions to the issues. This is the kind of thing that demands on honesty, cooperation, integrity and professionalism geared toward the future well-being of the parties and their children. What a tremendous opportunity to restore the public’s (so lacking) confidence in the legal system and the way in which disputes can be resolved.

7. GUARD yOUR LIfE Become the “sculptor” not the “sculpture” of

your own career and life. Take responsibility for the choices and decisions you make. Trust me, no one (not even your partner) has a greater investment in your success and satisfaction than you! It’s up to you to direct and protect your soul from selling out. Develop boundaries. As a Deputy Judge, I am constantly telling litigants that “good fences make good neighbours.” Take time to know and appreciate what you really want and why and be prepared to take action to make it happen.

8. KNOW yOURSELf Lawyers and judges – we are all in leadership

and leadership is all about character. Take time to know thyself. Knowing who you are will enable you to find ways to select work that allows you to express yourself and that in turn will bring wholeness in the work you do.

9. bUILD ON THE POSITIVE Keep track of your accomplishments.

Unfortunately, we generally work in an environment that is notorious in focusing us on our mistakes and defeats rather than the good things we accomplish. Keeping your mind on your successes, as small as they may appear to be, will build your own confidence

and will help you to withstand the storms of defeat. 10. bE A PERSON Of VISION I love the proverb: “Without a vision, the people

perish.” Create your very own personal vision statement. Commit to it by aligning your goals with it.

Start (or re-start) your journey by creating your own personal vision – a picture of the future to which you can commit. This picture will expresses your values, the contribution you want to make and the way you want to live your life.

Without a vision, over time you will be easily led by the expectations of others. It’s all about being in command of your own ship. How many times have you found yourself unhappy, only to realize (all too late) that you’ve allowed the demands and approval of others to become the rudder in your life? In order to demonstrate true leadership we must begin first by leading ourselves.

With a vision, you will discover that you can go beyond adapting to whatever comes your way. You will begin to work to change yourself and influence others to change themselves.

11. STRIVE fOR EXCELLENCE In all you do – do it well. Maintaining high

standards for your work reflects positive striving. On the other hand, being harshly self-critical for the smallest error will undermine your success. There is a big difference between being competent and being perfect. Perfectionism can easily lead to micro-management and harsh criticism of others and especially of yourself, neither of which will ever make you a better person and will in fact make you ineffective.

12. bE MENTORED The unspoken conspiracy of law schools is in its

reprogramming our DNA. They reprogram us to think, act and talk like lawyers. Ever since I graduated in 1982, I have challenged myself to deprogram myself. I’m still working on it!

One of the tragedies is that law school teaches us to put a premium on self-reliance. As we grow up to be lawyers and some of us judges, we marvel at the ability of those who have achieved success – “the self-made man or woman.” I tell you – it’s not good!

Establishing your own personal advisory board enables you to obtain assistance from several people. Each has a unique contribution to make to your career success. This approach also gives you an opportunity to seek needed assistance without over-burdening any one person.

In order to construct an effective personal board



1 Of the Ontario Superior Court, Milton, Ontario. 2 Law Clerk to the Justices of the Ontario Superior Court, Central West Region. 3 For an interesting discussion of the relationship among the principle in Browne

v. Dunn, and ss. 10 and 11 of the Canada Evidence Act and ss. 20 and 21 of the Ontario Evidence Act, see Stewart v. Canadian Broadcasting Corp., [1997] O.J. No. 2271, per J. Macdonald J., and the authorities referenced in that case.

EVIDENCE LAW:A bRIEf PRIMER fOR THE CIVIL LITIGATOR

Hon. David L. Corbett1 and Telena Mulligan2

We conducted our research for this paper following a most rigorous course: we polled the Superior Court Judges in the Central West Region, and asked them the following question.

What two mistakes in evidence law are most likely to be made by counsel during civil trials?Some judges, blessed with greater equanimity than

most, could find no fault with civil litigators. They were a distinct minority, however. The suggestions below are ranked according to a balance between the frequency with which these errors are made, and a weighting as to the extent to which the errors, once made, contribute to a sense that counsel may not know how to run a trial. They are listed starting with the most serious, most common errors.

1. UNDERSTAND THE HEARSAy PRINCIPLEHearsay is an out of court statement tendered in evidence

for the proof of its contents. Hearsay is not:(a) an out of court statement tendered to prove that the

statement was made; or(b) an inference drawn by a witness from direct facts

known to the witness.Generally, counsel have no difficulty with the contempt

of “an out of court statement”, although hearsay contained in proved documents is sometimes a challenge (see comments on proof of documents, below). On the hearsay principle, see: Teper v. The Queen, [1952] A.C. 480 at 486 (P.C.).

Counsel do seem to have considerable difficulty with the concept that a statement offered for the fact that it was said is not an exception to the hearsay rule: such evidence is not hearsay at all. See: R. v. O’Brien, [1978] 1 S.C.R. 591 and Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 956 at 970 (P.C.); repeated with approval in Rattan v. Regina, [1971] 3 All E.R. 801 at 805 (P.C.).

See also Hon. S.N. Lederman and Hon. A.W. Bryant, The Law of Evidence in Canada (2nd ed., 1999) at 177-178 (paras. 6.16-6.17):

A statement is admissible as proof, not of its truth, but that he statement was made. When a statement itself, apart from the truth of the assertion therein, has relevance to a fact in issue, hearsay dangers do not arise and there is no problem about admissibility. In other words the out of court statement is not being offered to prove the truth of the contents of the statement. Thus, a distinction must be drawn between statements, which evidence a particular conduct or verbal act and are submitted for this purpose, and those statements, which are tendered as evidence of the narration. Only the latter are prohibited by the rule.

What is important to note is that the category “hearsay” is determined by the relationship between the evidence tendered to the court (is the witness telling something that he has been told by someone else?), and the proposition to be established by that evidence (is the truth of the statement in issue? Is the fact that the statement was made in issue?)

Finally, it should be emphasized that the hearsay exception to admissions against interest is not a sub-category of out of court statements adduced for the fact that they were said. They are adduced to establish the truth of their contents, but are an exception to the hearsay principle.

Tips for counsel: Master these distinctions: nothing can contribute more to a court’s sense of unease than an impression that counsel does not understand these most basic principles of the law of evidence.

2. ADHERE TO BrOwnE v. Dunn SENSIbLyThe principle in Browne v. Dunn (1893), 6 R. 67 (H.L.),

is not so much a rule of evidence law as a principle of fairness to witnesses.3 However, its application has an effect on the admissibility of evidence. Before counsel may adduce a version of facts materially different to the version provided by Witness A, who is testifying, counsel must fairly put that version of the facts to Witness A.

Generally, most counsel understand this principle quite well. The common error is the over-kill “to be on the safe side”. For example, Witness A testifies that he was at a fishing camp on the day of a material meeting, and not at the meeting. It is not necessary to put every detail of the meeting to the witness. He wasn’t there, he says. Put it to him that he was there. If it is alleged that he agreed to something at the meeting, and that is material, put that fact to him as well. Of course he will deny it, since he was not at the meeting (he says), but your duty will have been done. Please, please, do not do this:

Q: Sir, to confirm, you say you were off fishing on October 14, 2004?

A: Yes, that is correct.Q. I put it to you that you were at a learned

conference on the law of evidence that day.A: No, that is not so.Q: The conference was chaired by James Morton, and

you had lunch with him that day?A: No, I was fishing.Q: Professor Pilkington gave a paper?A: I wasn’t there.Q: Justice Corbett delivered his usual rant?A: Likely so, but I wasn’t there.Q: And at lunch with Mr. Morton, you and he

discussed the Rule in browne v. Dunn?A: It never happened. I don’t know either Browne or

Dunn.Q: And then you discussed hearsay?A: I caught a sturgeon that day.

4 [1994] 2 S.C.R. 95 [2009] O.J. No. 3534

Q: you talked of the regulation of paralegals?A: I would never do such a thing; I was not there.… (transcript edited to remove 46 other particulars of

the conversation put to the witness, and the recorded snores of the Court Services Officer, the Registrar, and the Judge)…

Q: And you told Mr. Morton that you needn’t worry about any of these things any more, because that afternoon you were going to close a big transaction?

A: No, no.Q: And so if Mr. Morton testifies to this effect, he is

wrong or lying?A: Precisely. So far as I know he doesn’t even like fish.See: R. v. Verney, [1993] O.J. no. 2632. (C.A.) at para.

28: Browne v. Dunn is a rule of fairness that prevents the “ambush” of a witness by not giving him an opportunity to state his position with respect to later evidence, which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness’s evidence-in-chief putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness. Having the witness repeat in cross-examination, everything he said in chief, is rarely the tactic of choice. For a fuller discussion on this point, see Palmer v. The Queen, (1979) 50 C.C.C. (2d) 193 at 209-210.

Tip for counsel: Give an adverse witness a fair opportunity to address inconsistencies in the theories of the case, but do not put every small detail of departure to the adverse witness.

3. ALWAyS CARRy A COPy Of r. v. MOHan4 AND r. v. aBBEy5 WITH yOU (AND READ THEM)

It really is not helpful to advise a trial judge that the evidence of a proposed expert would be “helpful”. The language of the test for admissibility of expert evidence has changed. Counsel need to persuade the court that the evidence of a proposed expert witness is “necessary” and not just “helpful”. Mohan has been with us for almost two decades now. It provides a comprehensive framework for the qualification and admissibility of expert evidence. Abbey is Justice Doherty’s helpful gloss on that framework.

Experts are qualified to give opinion evidence within the scope of their accepted expertise. When counsel has adduced evidence of the expert witness’s qualifications, she should then ask the trial judge to qualify the expert as an expert in a particular area or areas that are the focus of the opinion. Great care should be paid to the area of expertise: the more focused the expertise, the greater force the opinion may have. On the other hand, an expert will be foreclosed from opining in areas outside those for which he has been qualified. It is possible to have an expert qualified in multiple areas, and that should be considered in an appropriate case. For example, where a forensic accounting expert is qualified in a family law trial with respect to valuation of small businesses and quantification of income potential from small businesses:

(a) do not ask that the witness be qualified as “an expert witness entitled to give his opinion evidence on matters in issue in this proceeding”.

(b) at a minimum request that the witness be qualified as an expert forensic accountant.

(c) consider asking that the witness be qualified as a)qualified expert forensic accountant on the issues of business valuation and income potential valuation, able to opine on those issues before the court.

Where there are competing experts, the great the degree of specialized competence of your witness, the greater chance that you can persuade the court to prefer your expert’s evidence on the basis of superior and more focused expertise.

Traditionally, the expert’s oral evidence would be tendered at trial, and not her written report. That practice has changed. It is now common to put the written reports into evidence, and then have the expert explain and comment upon her report. This is good practice. It saves considerable time and assists the trial judge to understand the evidence at the time the witness testifies.

Counsel should obtain mutual agreement on whether the reports will be put into evidence. If they cannot agree, the issue should be addressed at the outset of the trial.

Tip for counsel: Frame an expert’s area of qualification for testimony on the basis of the evidence to be tendered in the case. Do not gloss over this aspect of the evidence.

(Editor’s note: counsel should also be familiar with the new Rules regarding expert evidence)

4. TO LEAD OR NOT TO LEAD, THAT IS THE QUESTION

Always lead witnesses through preliminary, non-controversial matters. Never object when opposing counsel does so. Otherwise, trials will see the following exchanges:

Q: What is your name?Objection Your Honour: this leading question implies

that the witness has a name.Court:It’s close to the line, but I will allow it if counsel

rephrases.Q: Do you know other people?A: Yes (in an uncomprehending tone of voice).Q: Do they have a usual manner of addressing you?A: (still uncomprehending) Well, I live on Maple

Street.Q: No, what do other people call you?A: Oh… (now understanding)… well a few call me a

horse’s backside, but most call me Bill.Q: Why do they call you bill?Objection: That calls for speculation Your Honour. How

can this witness testify as to what other people think?

Court: I think you best move on counsel.Q: Very well. When were you born?Objection: Your Honour! That calls for hearsay. This

witness cannot possibly have an independent recollection of his own birth. Surely my friend is not suggesting that he can

6 For example, there may be rare circumstances where it is appropriate to impeach the witness one question at a time: with a jury, when the passage is short, and virtually each sentence contains an obvious inconsistency.

refresh the recollection of the witness as to the date of his own birth (a tone of scorn is creeping in).

Court: He has a point counsellor. Are you planning on calling the witness’s mother, or the doctor who delivered him?

Counsel: No, but I have a birth certificate here if that will help.

Court:Have you complied with the notice requirements?(…trial in this wrongful dismissal case is scheduled for

six weeks).Get to the point.Once you are at the point, stop leading. Leading on

contested matters is both impermissible and unpersuasive.Tip for counsel: Lead up to the point and then let the

witness tell her story.5. USE Of PRIOR STATEMENTS

There is a proper formula for putting a prior statement to the witness. The essentials of the formula should always be followed:

Confirm the witness’s testimony:Q: you’ve told the court that you were fishing on

October 14, 2004?A: YesQ: you’re sure about that?A: Yes.Q: And you were not at the Evidence Conference?A: No, I was fishing that day.Confirm the prior statement:Q: you recall being examined for discovery in this

case?A: Yes.Q: That was on february 20, 2004?A: If you say so.Q: you don’t quarrel the date?A: It was around that time; whatever the date on the

transcript.Q: And you were asked questions by me at that

time?A: Yes.Q: And you answered those questions?A: Most of them, yes.Q: And a transcript was taken of that examination?A: Yes.Confirm the reliability of the previous statement:Q: And you were under oath at the time of that

discovery?A: Yes.Q: you swore to tell the truth?A: Yes.Q: And you did tell the truth.A: Yes.Put the previous statement to the witness:Q: Now I am going to read some questions and the

answers you gave at that examination to you.

I would ask you to listen. Then I am going to ask you if you were asked the questions and gave the answers. you have a transcript of the discovery before you? (Note: always put a copy of the transcript before the witness: it is only fair: you can’t remember it without the transcript, why should the witness be expected to do any better?)

A: Yes, I have it here.Q: your Honour, I am at page 46, starting at

question 247 (Note: always have a copy of the transcript before the Court too).

[Counsel reads from the transcript - counsel does not deviate from or editorialize while reading. Counsel does not stop after each question and each answer to ask if they were asked and answered. Deal with all of the questions and answers related to the topic at hand. Then …]

Q: Were you asked those questions and did you give those answers?

A: Yes, yes. You have me now. (weeping)… I have been lying all along and you, counsel, are most astute and brilliant.

[A brief recess]Do not, repeat, do not generalize from the transcript

when a witness gives an unanticipated answer:A: I was fishing.Q: Well that’s not what you said on discovery, is it?A: What?Q: you told me then that you were at the

conference.A: Did not.Q: Did so.A: Did not.Q: Liar, liar, pants on fire…(a brief recess)Deliver The Punch LineEverything up to this point is in accordance with

standard impeachment techniques. Counsel should not deviate from it except for very sound tactical reasons, and in the understanding that the trial judge may intervene.6 At this stage of impeachment, with counsel having credited both the current evidence and the prior statement, it is time for a choice to be made. Why are you pursuing the inconsistency? Do you want to drive the witness back to the previous statement? Is that the evidence you want? If so, counsel will attract more flies with honey than vinegar: suggest to the witness that she is mistaken here at trial, but not being untruthful. Suggest to her that her earlier recollection was correct and try to persuade her to adopt it. Then drop the matter. Or are you trying to impeach the witness? If so, then the inconsistency must be one for which there is no reasonable explanation. When the purpose of the impeachment is to attack credibility, you must corner the witness on a matter of such significance that dishonesty is the natural inference to be drawn.

Note: it is improper to file discovery transcripts at trial.

7 Sections 35 and 30 respectively

In a case where a plaintiff reads in extended portions of the discovery transcripts, it may be acceptable and save time to have the trial judge read the portions to herself, and to have the court reporter type in the read-in portions as part of the transcript, simply to save time. But the transcripts do not become exhibits.

Tip for counsel: follow the formula for putting a prior statement to the witness. That approach is both fair to the witness, and places the inconsistency before the court in a persuasive manner.

6. DOCUMENTSFirst, there should not be unexpected debate about the

admissibility of documents at a civil trial. All documents have been exchanged. Document briefs should have been exchanged before trial, and counsel should have obtained the position of the other side respecting admissibility beforehand. Such agreement avoids difficulties with the notice requirements under the Ontario and Canada Evidence Acts7 and assists the trial judge in organization of the materials. If there are documents which are contested, alert the trial judge at the outset of trial, ensure that you have served the requisite notices, and be prepared to prove the documents.

Second, if documents are admitted on consent, be sure to specify whether they are admitted for the truth of their contents, or the fact that they exist and are genuine. This is a crucial point, often missed. For example, bank statements will usually be admitted for the truth of their contents: to prove that the recorded transactions actually took place. A letter from one party to the other may be admitted to show that the letter was sent, but statements in the letter may be disputed facts at the trial. Review all documents, ahead of time, and be clear with the trial judge as to the purpose for which they are admitted.

Tip for counsel: Consider evidentiary issues arising in documents as part of trial preparation, organize the document briefs with evidentiary issues in mind, and alert the trial judge at the outset to anticipated issues.

7. THE DISTINCTION bETWEEN CONfIDENTIALITy AND PRIVILEGE

Privilege is a basis on which evidence may be excluded. Confidentiality is not. Courts frequently hear all manner of confidential or private information in the course of trials. See: Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd ed., 1999) at 716, para, 14.11:

Although confidentiality is the cornerstone for the protection of communications within particular relationships, confidentiality alone is not sufficient to attract privilege. Confidentiality may well attract other legal and ethical rights and obligations, but it does not have its foundation in the evidentiary doctrine of privilege.See also: L.L.A. v. A.B., [1995] 4 S.C.R. 536 at paras. 15,

76; MacMillan Bloedel Ltd. v. British Columbia (Assessors of Area of West Vancouver), (1981), 130 D.L.R. (3d) 675 at paras. 13-22; Wells by her Litigation Guardian, the Public Trustee v. Paramsothy et al. * [Indexed as: Wells (Litigation Guardian of) v. Paramsothy], [1996] 32 O.R. (3d) 452.

Generally trial counsel understand these differences, but from time to time confusion creeps in. If a party seeks protection for confidential information adduced at a trial, address that concern within the bounds of the protective orders a court may make (such as an express order respecting the implied undertaking, a sealing order, an order protecting the identity of parties or witnesses, or the like). Do not object on the basis that a question calls for disclosure of confidential information: that kind of objection exposes counsel as unlearned, and may serve to undermine the confidence of the court in counsel’s knowledge and judgment.

8. THE DIffERENCE bETWEEN RELEVANCE AND PRIVILEGE

Even senior counsel sometimes respond to a privilege objection by noting that the requested information is relevant. Relevance is no answer to a claim of privilege. Indeed, many privileged communications would be highly relevant to the trial. You must forgive the weary trial judge if, hearing you raise this ground, she quickly concludes that you have no proper response for the claim of privilege.

See, for brief comments: Leopold v. Leopold, [1999] O.J. No. 2181 (C.A.) at para 7; L.L.A. v. A.B., [1995] 4 S.C.R. 536 at para. 67.

9. USE REQUESTS TO ADMITRequests to Admit can be used effectively to shorten the

trial process.These Requests are seldom used. Why not? For the

tactical benefits of strategic use of requests to admit, and the possible costs benefits of doing so, see: To et al. v. Toronto Board of Education et al. (2001), 204 D.L.R. (4th) 704 at para. 55; Foundation for Equal Families v. Canada (Attorney General), [1999] O.J. No. 2561.

10. CROSS-EXAMINATION: NOT A WEAPON Of MASS DESTRUCTION

Counsel are accorded broad rights of cross-examination.The trial judge cannot know in advance the point counsel

is trying to achieve in cross-examination at the outset. The trial judge should have no illusions about that point by the end of the trial.

Cross-examinations should be planned as carefully as examinations in chief, and should have both a point, and a structure, both of which should, at least at some point, become clear.

With these thoughts in mind:Cross-examination does not mean an examination

conducted crossly. There are times when counsel needs to be firm, but a tone dripping with sarcasm and derision is inappropriate most of the time.

Follow the adage of one fact, one question.Use cross-examination as a laser, not a cannon or a

“weapon of mass destruction”. Keep the cross-examination as short as you can, make the points you need to or can make, and then sit down.

Do not have the witness review her entire evidence in chief!

Do not argue with the witness.Do not raise your voice.

of directors you need to assess your learning needs. Identify the skills you need to acquire or improve in order to achieve the career goals you’ve set for the next year or two. Having identified your knowledge needs, you’ll be ready to identify potential advisors. You can get recommendations from others. At the same time, observe people you’d like to emulate or those who have some special expertise in the areas in which you’re interested. Look both within as well as outside your current work setting.

How to find a mentor? Select those whom you trust. Some could prove to be difficult and result in failure, but keep on searching until you find that person(s). And don’t send a cyber blast out asking people to be your mentor!

Clarify within yourself each person’s expectations for your relationship. Negotiate how long you expect the relationship to proceed and what your mentor needs in order for the relationship to be mutually rewarding.

Remember, different mentors may have different giftings to serve different functions in your life.

For example, it’s useful to find a mentor with deep knowledge in your area of the law – a senior lawyer who can provide candid and constructive feedback about your work. You need to have someone you trust to whom you can turn to with substantive questions about your work.

Although the legal world puts a premium on self-reliance, everyone needs guidance and support – role models.

13. bE A MENTOR I love the 2000 American drama film, Pay it

Forward. If you missed it – do make a point of picking up the DVD! It’s the story of a social studies teacher (Kevin Spacey) who gives an assignment to his class to think of something to change the world and put it into action. Assigned to come up with some idea that will improve humankind, an 11 year old boy decides that if he can do three good deeds for someone and they in turn can “pay it forward” (rather than “pay it back”), to another person, and so forth, positive changes will ensue.

Take everything I’ve said in “Be Mentored” and as you grow older and wiser, people will seek you out. Remember: What goes around – will come around. Invest your lives in others. Strange as it seems, the laws of the universe state that in the end – you’ll be the rewarded one.

14. NETWORK, NETWORK, NETWORK Spend time with others. Knowing people is a

good thing. Connecting with others (and not just for

business!) will enhance you as a person, and will also allow you to give to others. Giving has this remarkable way of finding its way back to you. I love networking with others. I love standing back and watching how long lasting relationships develop. If you are an isolated island somewhere in the Pacific, no one will visit with you.

Whether you’re seeking timely information for a case, connections for business development opportunities or looking for another job, a well-developed network is an essential resource. And remember, people who like you, as well as your work, are more likely to be in your corner. We all need fans, especially in times of trouble.

15. bE A RISK TAKER Developing who you are will require you to get

out of your comfort zone. How many times have I gotten myself in deep “doo-doo” by taking risks! The fact is, if I had to do it again, while I might do it differently, but I truly can see that I am a richer person for having taking that extra stretch in putting myself on the line.

You stand to lose far more by being invisible than you do by taking risks. And when you blow it, pick yourself up, dust yourself off, perhaps wipe away a few tears and get right back up again.

Manage your emotions, avoid harsh criticism and always respect the dignity of others. Never personalize your mistakes. Just because you failed at one thing doesn’t make you a failure. View your mistakes as learned opportunities. Taking risks builds resilience. The more you stretch, the more you’ll succeed.

16. bE POSITIVE I wanted to end with this admonishment: we

should be “purveyors of hope.” Being a realistic optimist will allow you to gain control and stop you from investing energy in things beyond your control which could result in ultimate failure.

My trainer constantly (I mean con-stant-ly) tells me that I choose to see the glass half empty. I relish failure! When faced with a setback, optimists don’t succumb to feelings of helplessness. They maintain their focus on the larger purpose, finding ways to bounce back and pursue alternative routes to their goal.

Being positive will provide you with new learning opportunities. Judges and lawyers are trained – programmed to think the worst, believe the worst and if it all turns out good, then we’ve done good. So much of what we do is about anticipating and



preventing disaster; contemplating what can go wrong rather than what good can come of our work or a situation.

Okay, you’re convinced that optimism is just a personality characteristic and you either have it or you don’t. However, I’ve read studies which state that people can learn to think more optimistically. (I’m working on it – I promise.)

IN CLOSING ... Yes, I can go on and on... my final words:

F At all times – be flexible open to others’ points of view.

F Preserve your dignity as well as the dignity of those around you.

F Be a builder and empower.F Practice collaboration and openness. F Maintain your integrity. F Be persistent in the face of adversity.F Take responsibility for your own fate. Stop blaming

others!F Be steadfast in your values and goals and remain

determined and self-disciplined in your efforts to achieve them.

And ... don’t give up!


The National Conference of Bar Presidents and the American Bar Association brought their massive conference to Toronto in August, 2011. I was privileged to be invited to attend several events hosted by the NCBP during which I met several of our American colleagues from across the U.S. and learned much. I discuss some of the highlights here.

First, at the opening gala at Sassafraz Restaurant in Yorkville, I learned that Americans, even lawyers, are an exuberant bunch. My proposal to the PLA that we adopt their practice of greeting each introduction with a round of Arsenio Hall style whoops, however, was turned down. Sorry. I also learned that they have many of the same concerns about the state of the law, law practice, judicial resources and access to justice as plague us here.

Second, at the breakfast round tables the following morning, I learned that just as the LSUC is considering scrapping articles altogether, some states (Massachusetts in particular) are considering implementing it. I have since been in touch with the Massachusetts Bar President who is closely following developments here in Ontario. Some states, in an effort to get some level of standard competence across the board have implemented mandatory mentoring programs, although to be honest, it seemed that those programs suffered from the same issues are ours: a lack of willing mentors. Others have quite aggressive mandatory CPD requirements. Many State Presidents with whom I spoke were excited to hear about our articling system and assured us that they would be bringing our ideas to their home states.

Third, I learned that the State and local Bar Associations ask themselves the same questions as we do about membership. How to increase membership, how to provide value to members and how to spend membership dollars. Delegates from several states exchanged interesting ideas about the challenges they face. In some states, membership is mandatory, but as I understood it, those are primarily states in which the Bar Association also has a regulatory function. Several times, often to stunned audiences, I explained the system in Ontario in which the regulatory function of the LSUC is entirely separate from the advocacy/representative function of the local law associations under the umbrella of CDLPA.

And finally, I learned that our American counterparts like a cleansing ale at the end of a long day as much as we Canadian lawyers.

Chicago, expect me in August, 2012.

NCbP CONfERENCEby Frankie Wood

After hearing from Malcolm Heins, (then CEO of the Law Society) and from the Committee regarding the upcoming 5 Year Review, there was much discussion on the subject of paralegal regulation and related issues. Many issues were raised from Presidents across the province, including the confusion in marketplaces throughout Ontario in light of the fact that some paralegals include their membership status of the Law Society in their advertising campaigns. This statement has created confusion for the general public as to what areas of law the paralegals are allowed to practice and indeed whether some practitioners are lawyers or paralegals. This confusion seemed more prevalent among clients who speak languages other than English and French.

In addition, there was concern as to what is perceived to be the parity that the Regulator (“the Law Society”) was seeking with respect to lawyers and paralegals when clearly, from an education and other training aspects, the ability to provide services was not at par. Many of the participants were dismayed as to why there was a push by the Regulator to have paralegals access services that lawyers pay for, including access to the libraries. The Chair of the Paralegal Standing Committee, Cathy Corseti, indicated that of the 3,000 paralegal members of the Law Society she anticipated that only a small minority would want access to the libraries. Some associations have permitted access by paralegals to libraries, but many others remain opposed to this. Since the May plenary, there have been significant developments in this issue. See elsewhere in this edition of Peel Briefs for more on the subject.

Many of the Presidents expressed their feeling that Law Society needs to better understand that paralegals and lawyers are not the same and that paralegal regulation needs to be revisited because:

a. There exists a confusion in the general public because of the inclusion of paralegals as members of the same organization as lawyers, especially in ethnic consumer based communities.

b. This confusion is causing damage to the legal profession and may cause harm to members of the public.

c. There is a need to govern paralegals differently, possibly through a different organization such as a college under LSUC governance, in order to differentiate paralegals from lawyers to the general public and in the profession.

CDLPAPARALEGAL COMMITTEE by Raj Sharda

At the CDLPA Reception and Dinner on May 4, 2011, guest speaker James P. Nolan, President, National Conference of Bar Presidents (USA) provided some insight to lawyers and the legal profession from an American perspective.

Somewhat surprisingly, Mr. Nolan emphasized many welcomed similarities between Canadian lawyers and our American counterparts. Aside from the expected challenges that come with the practice of law, the legal profession, whether American or Canadian, is one that is founded on integrity and is seemingly well suited to be at the forefront of our law making systems. Accordingly, lawyers in the U.S (and Canada) historically comprised a high percentage of law making positions in all levels of government.

Mr. Nolan queried why legislative bodies in all levels are increasingly comprised of non-lawyers? According to Mr. Nolan, this is the current trend in the U.S and similarly in Canada. Could it be that the image of lawyers has fallen out of favour with the general public? Or that lawyers generally have become ultra conservative and are less willing to “roll the dice” with a candidacy?

Whatever the reason, Mr. Nolan emphasized that our profession needs to support and promote its own candidates in the political arena. After all, one would be hard pressed to find a profession more suited to making law than the one that studies law.

While William Shakespeare may have penned “The first thing we do, let’s kill all the lawyers”, Mr. Nolan would submit, jest aside, that society would be better served with more lawyers in politics.

US bAR PRESIDENT ADDRESSES CDLPAby Vince Houvardas

Dan Rozencrantz, CDLPA treasurer, presented the yearend report for December 31, 2010. He advised plenary that there would be no increases in fees for 2011 and that overall it had been a good year.

TREASURER’S REPORT by Rae White

MARIE B. NICKLE LL.B LL.MLawyer/Trainer

Offering complete

ADR SEVICES & TRAININGfor lawyers and other professionals in the

Collaborative Practice Model1715 Lakeshore Rd. West, Suite 204

Mississauga, Ontario L5J 1J4Tel: 905-823-1232 • Fax: 905-823-7104

[email protected]

The panel on this presentation consisted of Romauld Kwolek, Janet Whitehead, Frances Wood, Kelly McKeating (actuary) and Anne Marie Predko of the AGO’s office.

There was some discussion about the Four Pillars program rolling out across the province now that trials in areas like Peel have been completed. The Four Pillars includes mediation programs, DRO’s and Mandatory Information Programs (MIPs). There was a discussion about some of the smaller communities being either unable or unwilling to volunteer their time to the Four Pillars program. This is due to conflict of interest, a lack of guidelines as to what the DRO’s are able to/should do and due to a lack of judicial immunity or any official position by LawPro as to coverage for lawyers volunteering their time and services for these programs. It was also raised that lawyers are the only participants in the Four Pillars program that are asked to volunteer their time and are not paid. There was also discussion about making the script used in the Mandatory Information Program more inclusive.

Ms. McKeating spoke at length about the new regulations that have been handed down with respect to pensions and warned us that they will not make things more simple, that they do not take into account the health of the member of the pension, that they do not take into account tax consequences and that the regulations as they stand cannot be applied against a large number of pensions. Despite a large number of issues to be worked out, the intent is that the regulations will be proclaimed in a few months with everything to begin in January 2012.

CDLPA...... continued from page 19

fAMILy LAWby Rae White

Chair of CDLPA’s Legal Aid Committee, Ken Hall, reported on CDLPA’s continued involvement in supporting sustainable Legal Aid in Ontario. CDLPA continues to be an active member of the Alliance for a Sustainable Legal Aid (ASLA). This is a committee of Legal Aid stakeholders and users which include The Advocates Society, Association of Legal Clinics in Ontario, the Criminal Lawyers Association of Ontario and of course CDLPA. Through ASLA, CDLPA is able to help shape Legal Aid policy on an ongoing basis and as needs arise.

Through Mr. Hall, CDLPA is also represented on the newly created Block Fees Quarterly Assurance Advisory Committee. This Committee has been set up to undertake to review the effectiveness of the block fee tariffs and recommend any changes that would enhance the effectiveness of delivery of service. According to Mr. Hall, the Committee actually extends far beyond block fee tariffs to such matters as the Extremely Serious Matters standards, the Consent and Capacity Panel standards, the Refugee Panel Standards, the Criminal Panel Standard. Accordingly, recommendations flowing from this committee help shape the minimum standards expected of practicing lawyers in many of the areas of expertise.

Through these and related committees, CDLPA continues to maintain an ongoing and productive liaison with Legal Aid Ontario, helping to ensure our input in shaping Legal Aid policy.

CDLPA LEGAL AID REPORTby Vince Houvardas

If you have ever had an estate file with numerous unhappy beneficiaries, estranged spouses, step-children, vague clauses, or assets that can change in value, you were probably glad that you have E&O insurance. But what about the executors? We all tell them that they have liability for their errors and omissions, but what about insurance for it? Recently, that has become available.

Estate Risk Protection Plan Inc. in Waterloo has created a policy to cover executors’ legal fees to defend against allegations that assets weren’t sold at a favourable price, that beneficiaries weren’t treated properly or equally, and for the funds required to satisfy a judgment against the executors for their errors. The policies can be purchased for estates up to $5 million, and must be obtained within 60 days of death of the testator. The policy has a three year term.

I have not used such a policy myself, but it may be something you can consider when advising an executor that faces a difficult estate to administer.

EXECUTOR INSURANCEby David Acri

Serving Oakville, Mississauga, Milton, Brampton, Newmarket and Torontotel: 905-625-2874 email: [email protected]

Haig and Golan have between them: over 40 years of law-yering experience; Family Law Specialist designation; Master’s Degree in Family Law (2010); Master’s Degree in Civil Litigation and Dispute Resolution; and many courses including mediation, negotiation, and collaborative law pro-grams

Golan YaronMasters in Family Law

Haig DeRushaFamily Law Specialist

LETTER TO THE EDITORby Mike Tweedie

KENTUCKy ORDERI take this opportunity to forward to you, for possible inclusion in Peel Briefs, an order made by the Honorable Justice

Sheehan, a judge of the Kenton Circuit of Kentucky, forwarded to me by a colleague in the insurance industry.While I am second to none in my admiration for and confidence in the civil practice as respects orders and judgments

here in Ontario and can scarcely imagine what form any improvement would take, I note that Kentucky practice appears somewhat more elaborate in comparison with ours and this specimen may offer insight and perhaps inspiration to my fellow member of the PLA and even, perhaps, to those members of the judiciary who read these pages.

We cannot afford complacency; if the common law world is evolving a fresh and far richer format, then in the interest of those refinements and improvements which are offered by a study comparative law, I commend a thoughtful consideration of the attached order to your faithful readers.

LETTER TO THE EDITOR...... continued from page 17

Real Estate Appraisers & Consultants 12 Appraisers servicing Peel & Halton

o Estate, Litigation, Divorce o Experienced Expert Witness

Rod Hendren, AACI & Mary Lou Hendren, CRA 44 Queen Street East. Brampton, Ontario L6V 1A2

905-450-3307 www.hendrenappraisals.ca

Gabriella Varsha Deokaran of DPLS LLP is located at 125 Topflight Drive, Suite 2, Mississauga, L5S 1Y1.

Chaitali H. Desai, Barrister, Solicitor and Notary Public, is located at 7075 Edwards Boulevard, Suite 201, Mississauga, L5S 1Z2, telephone: (905) 564-0544, fax: (905) 564-0644.

Sona Dhawan of Thompson, MacColl & Stacy LLP is located at 1020 Matheson Boulevard E., Suite 5, Mississauga, L4W 4J9, telephone: (905) 625-5591 ext. 229, fax: (905) 238-3313.

Michael Dibua of Michael Dibua Law Office is located at 338 Queen Street E., Suite 208, Brampton, L6V 1C4, telephone: (905) 216-3307, fax: (905) 216-3309.

Michael figol, Barrister & Solicitor, is located at 2200 Bloor Street W., Suite 200, Toronto, M6S 1N4, telephone: (416) 760-0524, fax: (416) 760-7598.

Jane Harvey of Jane Harvey Lawyers is located at Square One Mall, Mississauga, L5B 2C9, telephone: (905) 272-2266, fax: (905) 270-2876.

Aarika Heath of Heath Barristers is located at 7700 Hurontario Street, Suite 503, P.O. Box 164, Brampton, L6Y 4M3, telephone: (647) 784-3284, fax: (647) 724-1739.

Romesh Hettiarachchi of DH Professional Corporation Barristers & Solicitors, is located at 51 Village Centre Place, Mississauga, L4Z 1V9, telephone: (905) 273-3339 ext. 236, fax: (905) 273-5672.

Neal Hewitt of Golder Associates Ltd. is located at 6100 Century Avenue, Mississauga, L5N 6A4, telephone: (905) 567-6100 ext. 2573.

Sidoney Howden of CMAA Professional Corporation is located at 4316 Village Centre Court, Suite 300, Mississauga, L4Z 1S2, telephone: (905) 270-8075 ext. 222, fax: (905) 270-4764.

Subhash Joshi of Joshi & Walia Lawyers LLP is located at 1530 Drew Road, Suite 30, Mississauga, L5S 1W8, telephone: (905) 362-0111, fax: (905) 362-0138.

J. David Keith of Prouse Dash & Crouch, LLP is located at 50 Queen Street W., Brampton, L6X 4H3, telephone: (905) 595-2204, fax: (905) 451-1549.

Janelle Khan, Barrister & Solicitor, is located at 5230 Dundas Street W., P.O. Box 40637, Etobicoke, M9B 6K8, telephone: (647) 876-5426, fax: 1 (866) 223-5494.

Joanne Lagoudis of Bello Lagoudis LLP is located at 1100 Central Parkway W., Suite 37, Mississauga, L5C 4E5, telephone: (905) 273-6873 ext. 22, fax: (905) 273-3814.

fintan Lee of North Peel & Dufferin Community Legal Services is located at 24 Queen Street E., Suite 601, Brampton, L6V 1A3, telephone: (905) 455-0160 ext. 230, fax: (905) 455-0832.

COMINGS AND GOINGS...... continued from page 3

Robbie Levita of Price & Altman Barristers is located at 5000 Yonge Street, Suite 1700, Toronto, M2N 7E9, telephone: (416) 365-0766, fax: (416) 365-0866.

Rocco C. Loccisano, Barrister & Solicitor, is located at 1199 The Queensway, Toronto, M8Z 1R7, telephone: (416) 207-9915, fax: (416) 232-9522.

Amanda H. Magda of Desjardins General Insurance Company is located at 3 Robert Speck Parkway, Suite 500, Mississauga, L4Z 3Z9, telephone: (905) 306-5252 ext. 3936, fax: (905) 306-3939.

Shana Maiato of RZCD Law Firm is located at 77 City Centre Drive, Suite 700, Mississauga, L5B 1M5, telephone: (905) 848-6100 ext. 233, fax: (905) 896-1111.

Maija Martin, Barrister & Solicitor, is located at 205 Richmond Street W., Suite 501, Toronto, M5V 1V3, telephone: (647) 210-6307, fax: (647) 350-0760.

Archana Medhekar of Archana Medhekar Law Office is located at 4889 Dundas Street W., Suite 2, Toronto, M9A 1B2, telephone: (416) 977-4204, fax: (416) 977-6352.

Shilpa Mehta of Feldstein Family Law Group Professional Corporation is located at 3464 Semenyk Court, Suite 213, Mississauga, L5C 4P8, telephone: (905) 281-4403 ext. 102, fax: (905) 415-0785.

Paul K. Mergler, Barrister & Solicitor, is located at 1199 The Queensway, Toronto, M8Z 1R7, telephone: (416) 232-9589, fax: (416) 232-9522.

Michael Miculinic of Campbell Plener Associates at Law is located at 4 Robert Speck Parkway, Suite 300, Mississauga, L4Z 1S1, telephone: (905) 270-3995 ext. 25, fax: (905) 270-3992.

Charles Mota-Duarte of Kavita & Associates Professional Corporation is located at 215 Queen Street W., Brampton, L6Y 1M6, telephone: (905) 497-6806, fax: (905) 497-6807.

Simeon A. Oyelade of Simeon A. Oyelade Barrister, Solicitor, Notary Public is located at 1280 Finch Avenue W., Suite 615, Toronto, M3J 3K6, telephone: (416) 398-4833, fax: (416) 398-9871.

Jennifer Park of Chan H. Kim and Anthony Shuttleworth is located at 93 Queen Street S., Mississauga, L5M 1K7, telephone: (905) 285-0788, fax: (905) 285-0711.

Aida Pasha of Bhardwaj & Associate Lawyers Professional Corporation is located at 7500 Hwy 27, Suite 7, Vaughan, L4H 0J2, telephone: (416) 747-7777 ext. 321.

Samir Chandrakant Patel of DPLS LLP is located at 125 Topflight Drive, Suite 2, Mississauga, L5S 1Y1.

Christian Pearce, Barrister & Solicitor, is located at 500 Duplex Avenue, Suite 806, Toronto, M4R 1V6, telephone: (416) 722-6985, fax: (647) 352-2880.


Louis Robinson, Barrister & Solicitor, is located at 150 Consumers Road, Suite 105, Toronto, M2J 1P9, telephone: (416) 502-9610, fax: (416) 502-9619.

Christina Roncossek, Barrister & Solicitor, is located at 2275 Lakeshore Boulevard W., Suite 525, Toronto, M8V 3Y3, telephone: (416) 252-8646, fax: (416) 252-7020.

Amanpreet Ricky Rye of Folkes Legal Professional Corporation is located at 14 Nelson Street W., Suite 1, Brampton, L6X 1B7, telephone: (905) 457-2118, fax: (905) 457-3707.

Sukhwinder Singh Samra of Samra Law Office is located at 259 Traders Boulevard, Unit 4, Mississauga, L4Z 2E5, telephone: (905) 501-7300, fax: (905) 501-7366.

Raquel A. Savoury of Legal Aid Ontario (Family Duty Counsel) is located at 7755 Hurontario Street, Suite 223, Brampton, L6W 4T6, telephone: (905) 456-4700 ext. 5677.

John Scarfe of Scarfe Wells is located at 12 St. Joseph Street, Suite 102, Toronto, M4Y 1J7, telephone: (416) 410-4060, fax: (905) 944-2529.

Rangila Sengupta, Barrister & Solicitor, is located at 5 Church Street E., Brampton, L6V 1E8, telephone: (416) 522-8240, fax: (905) 459-5534.

brian Silva of Crawford Chondon & Partners LLP is located at 2 County Court Boulevard, Suite 430, Brampton, telephone: (905) 874-9343 ext. 240, fax: (905) 874-1384.

Mary Tersigni of Feldstein Family Law Group Professional Corporation is located at 3464 Semenyk Court, Suite 213, Mississauga, L5C 4P8, telephone: (905) 281-4403 ext. 101, fax: (905) 415-0785.

Anthony Tran of the Law Office of Anthony Tran is located at 120 Carlton Street, Suite 405, Toronto, M5A 4K2, telephone: (416) 925-5322, fax: (416) 928-5074.

Rita L. Urbonavicius of Gillis Zago PC is located at 200 Main Street N., Brampton, L6V 1P1, telephone: (905) 874-8700 ext. 235, fax: (905) 874-9694.

Philip Varickanickal of Kavita & Associates is located at 215 Queen Street W., Brampton, L6Y 1M6, telephone: (905) 497-6806, fax: (905) 497-6807.

Jennifer L. Wilson of Torkin Manes LLP is located at 151 Yonge Street, Suite 1500, Toronto, M5C 2W7, telephone: (416) 863-1188, fax: (416) 863-0305.

George A. Wootten, Barrister & Solicitor, is located at 1199 The Queensway, Toronto, M8Z 1R7, telephone: (416) 621-7470, fax: (416) 621-6838.

COMINGS AND GOINGS...... continued from page 23

Gargi Chopra of Simmons da Silva & Sinton LLP is located 201 County Court Boulevard, Suite 200, Brampton, L6W 4L2, telephone: (905) 861-2821, fax: ((905) 457-5641.

PLEASE WELCOME NEW 2012 MEMbERS TO THE PLA:

I am a lawyer, trained in Alternate Dispute Resolution [mediation, arbitration, med-arb and the collaborative process]. I am committed to "fairness" in seeking proactive, cost-effective resolution of disputes, whether in family law matters, business and other relational conflict disputes.

Robert Costello, Barrister & Solicitor, is located at 356 McRae Drive, Suite 104, Toronto, M4G 4G4, telephone: (416) 964-8179, fax: (416) 964-2033.

Tracey-Ann Dobson-Hamilton is located in Brampton, L6T 3V4, telephone: (647) 289-7084.

belinda Rossi of Blaney McMurtry LLP is located at 2 Queen Street E., Suite 1500, Toronto, M5C 3G5, telephone: (416) 596-2880, fax: (416) 596-2047.

Andrew J. Scott of Ford Justice Professionals Corporation is located at 29 Tannery Street, Suite 300, Mississauga, L5M 1V1, telephone: (905) 817-8200 ext. 103, fax: (905) 542-1144.

Vipin Kumar Sharma of Daksh Law Professional Corporation is located at 7700 Hurontario Street, Suite 412A, Brampton, L6Y 4M3, telephone: (905) 497-8000, fax: (905) 497-8080.

David Sider of The Children’s Aid Society of the Region of Peel is located at 6860 Century Avenue, West Tower, Mississauga, L5N 2W5, telephone: (905) 363-6131 ext. 2236, fax: (905) 363-6133.

Most people like me who have made it through their articles and bar exams some time ago have no clue how our young lawyers are being called to the bar today. We are oblivious to the process and its trials and tribulations. The current state of articles and bar admissions is as follows: 10 months of articles followed by 2 exams that are 7 hours each. There is the Solicitor’s exam and the Barrister’s exam. Each student has 3 years to complete the entire process. In 2011 there are 1,700 students looking for articles: approximately 214 (12%) of them will not find a job.

Ontario is the only province in Canada that is struggling to find articling positions for its students. Toronto and Ottawa are doing their part in furthering the development of our young future lawyers as 79% of all articling positions are found in those cities. 61% of all placements are happening in firms of 11 lawyers or more.

We have an opportunity here, arguably, an obligation, to help guide the future of the young students who are looking to be lawyers by becoming an articling principal. The Law Society is currently examining the Articling process and considering submissions on the issue from a variety

A CALL TO ARMS: THE fUTURE Of ARTICLINGby ??????

of stakeholders. Law Schools are willing to step into the breach and create programs to replace articles, but this would put further financial burdens on students and would take the articling process out of the hands of lawyers. We will almost certainly find that the Competition Bureau has a lot to say about our ability to govern ourselves when we can’t have a national standard for admissions to the Bar across Canada. Then end of articles in Ontario has very far reaching implications.

I think we all agree that there are great benefits to articles. They teach us ethics in real world situations, improve our skill set, provide us mentorship and provide practical experience. If you want articles to remain a part of the legal landscape then this is your call to arms. Step up. Take on a student even if you can only take a third of their articles. The Peel Law Association is setting up an Articling Committee to assist its members in this process. If you are prepared to answer our call for articling principals, but need assistance if finding others to share a student or if you just want further information, please contact us and we will be glad to assist in any way we can.

PLA Treasurer Kemi Palmer &1st VP Vince Houvardas

promoting the PLA duringthe 2011 Articling Student Symposium

at the LSUC.

Hanna: 3 1/2 out of 5 stars: A young girl is being trained by her father to be prepared for anything. He was once a secret agent and is now hiding out, waiting for the day he is found. Ultimately, she decides to go looking for the people that have kept her and father recluses. It is taut, unusual, and intriguing and stars Eric Bana, Cate Blanchett, and Saoirse Ronan as Hanna.

Setup: 2 out of 5 stars: He may be able to rap, but 50 Cent is no actor. This is a gritty story about how he is set up by his friend to take the fall for a crime. He then finds himself on the wrong side of the local mob boss as he tries to get back at his friend. 50 Cent cannot carry this story. He is one dimensional and awkward. Bruce Willis and Ryan Phillippe do their best to carry him but it doesn’t happen. Not worth the 6 bucks.

bridesmaids: 4 out of 5 stars: Kristen Wiig is the funniest woman in the world right now, and she surrounds herself with other very funny women in this comedy. She tries to do everything right for her best friend but as her life goes down the toilet a new acquaintance steps in to take over when everything goes wrong. Melissa McCarthy of tv’s Mike and Molly is now the second funniest woman in the world, in my opinion. When you get a chance to watch a movie that makes you laugh out loud, take it. This is the one.

Horrible bosses: 3 1/2 out of 5 stars: Three buddies have horrible bosses, and want them dead. And now they are actually going to do something about it. They devise a Hitchcockian “Strangers On A Train” plot in which each is to kill one of the other’s bosses. The problem is that they are just average guys, and of course, connected to each other. This is a comedy, and so of course things go horribly wrong, and laughter ensues. Jennifer Aniston is fantastic finally doing a role in something other than a predictable romantic comedy.

Change Up: 2 ½ out of 5 stars: Jason Bateman and Ryan Reynolds are buddies who by some freak of nature wake up in each other’s bodies. Of course, one is the responsible lawyer and family man, and the other is the free-spirited actor and womanizer. Comedy ensues. Keep in mind that this has been done dozens of times and there is nothing new about it, but there are a few chuckles.

Crazy Stupid Love: 3 out of 5 stars: Steve Carell is the responsible insurance agent and family man, recently separated. Ryan Gosling is the free-spirited guy without a job who is a womanizer. Gosling shows Carell some of his moves, and comedy ensues. There is a whole romantic twist and turn between the other characters that you didn’t see coming that makes it worthwhile, although Carell is certainly capable of being funnier.

Those are some of the movies I’ve rented recently. Watch them for yourself and see if I’m right.

MOVIE NEWSby Buster Block

Tom Carey was sworn in as a Justice of the Superior Court of Ontario on Friday, April 1, 2011 at the Essex County Court House in Windsor, Ontario.

The well-known Brampton criminal lawyer was sworn in by Chief Justice Heather Smith before friends and family, local Superior and Ontario Court Judges, as well as a contingent of Judges, Justices of the Peace and members of the Bar from Brampton.

Tom Carey as a Bencher of the Law Society of Upper Canada for approximately fifteen years had attended scores of swearing in ceremonies, bringing good wishes on behalf of the Law Society to Judges being sworn in.

It was fitting that the current Treasurer of the Law Society, Laurie Pawlitza, was present to bring greetings to the newly sworn in Mr. Justice Carey. She recounted the story when, early in Tom’s career, with longish dark hair and moustache, he was mistaken by the media for Keith Richards attending court on a drug charge, on the day when young Tom drove into 361 University Avenue with long time family friend Mr. Justice William Maloney in the back of a limousine.

Among the Brampton contingent of well wishes were Madam Justice Silja Seppi, Judge Jane Kerrigan-Brownridge, both alumni with Tom of Windsor Law School, as well as Justices of the Peace John Farnam and Albert Chang-Alloy.

Tom was a former secretary of the Peel Law Association, and founding editor of Peel Briefs in his stint on the Board from 1984 to 1988. He also received a PLA Lifetime Achievement Award three years ago.

Tom was in fine form at the swearing in ceremony and recognized and thanked friends and family and particularly those who had travelled such a long way to see him sworn in.

The Peel Criminal Lawyers Association honoured Justice Carey on June 3, 2011 at its Spring BBQ held at Rotary Glen Banquet Hall. An excellent time was had by all.

TOM CAREy SWORN INby John Mullen

Editorial PolicyPeel Briefs is a publication of the Peel Law Association, distributed free to paid up members. It is published four times a year. Member are encouraged to express their views on topics addressed in

Peel Briefs and to raise other issues for discussion.Any opinions or views published in Peel Briefs are those of the contributor and are not necessarily the opinion of the association or the Editorial Board and neither the Association nor the Editorial

Board accepts any respirability for them. Copyright for articles published in Peel Briefs remain with the authors of the individual article and written requests for permission to reproduce such articles should be made directly to the author. The Editorial Board reserves the right to publish or not. Letters to the Editor must be signed. Publications of any advertisements or enclosures should not be deemed an endorsement of the product or services advertised.

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