Law Times

March 13, 2017

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YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK • an up-to-date alphabetical listing • contact information • legal and government contact information ORDER YOUR COPY TODAY! Call 1.800.387.5164 or visit www.carswell.com for a 30-day no-risk evaluation CANADIAN LAW LIST 2017 Hardbound • Published February each year • L7798-5933 • On subscription $174* • One time purchase $194* Multiple copy discounts available * Plus shipping/handling and applicable taxes Untitled-1 1 2017-03-07 1:35 PM OCA to rule on discovery in Small Claims Court BY ALEX ROBINSON Law Times T he Ontario Court of Ap- peal has agreed to hear a case that concerns wheth- er Small Claims Court deputy judges have jurisdiction to grant discovery-type motions. The court granted leave to ap- peal a Divisional Court decision in Riddell v. Apple Canada Inc. that held that Small Claims Court deputy judges have jurisdiction to grant "discovery-type orders," but only in rare and limited circum- stances. In Riddell, the plaintiff brought an action against Apple Canada Inc., seeking $25,000 in damages for his claim that an iPhone 5 over- heated and severely burned his arm. The Small Claims Court deputy judge granted a pre-trial motion, ordering the plaintiff to produce the phone for inspection, as it was the foundation of his claim. The plaintiff appealed for ju- dicial review from the Divisional Court, which upheld the deputy judge's decision. The Divisional Court found that the deputy judge had the au- thority to make such an order, as it was similar to the type of pre-trial motion that could be made under Rule 32 of the Rules of Civil Pro- cedure, and the Rules of the Small Claims Court did not adequately cover the situation. Lawyers say a Court of Appeal ruling on the decision could do away with a lot of confusion in the Small Claims Court on the matter. As decisions in the Small Claims Court are not binding, the court has recently gone back and forth on the issue, says Jordan Farkas, a lawyer and founder of Mr. Small Claims Court. "The problem is you get com- plete inconsistency between the judges, which is rearing itself here in this case," says Farkas, who was not involved in the case. "I think there's just a big gap in the rules." In another recent Divisional TICKET BOT PROBLEMS Legal issues presented by automated purchases P7 FOCUS ON Immigration Law P8 See Big, page 2 PM #40762529 $5.00 • Vol. 28, No.9 March 13, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M FAMILY LAW REPORT Suggests paralegals provide some services P4 BY ALEX ROBINSON Law Times T he Ontario Divisional Court has issued a sting- ing criticism of the pro- cesses lawyers have to fol- low to retrieve unpaid fees from clients and the provincial govern- ment's failure to address backlogs in that system. In a recent decision concerning a dispute between Gilbert's LLP and two clients who refused to pay their bills, the Divisional Court ruled that lawyers can bring an ac- tion in court to recover outstand- ing fees. Justice Ian Nordheimer, writ- ing on behalf of a three-judge pan- el, said the assessment processes are "outdated and impractical" and that the Ministry of the Attor- ney General's failure to properly resource the assessment office has compounded delays. Backlogs in the assessment of- fice at the Ontario Superior Court in Toronto have often led to waits of more than three years before lawyers seeking fees have their matters heard by an assessment officer, lawyers say. Nordheimer urged the provin- cial government to make much- needed amendments to the So- licitors Act, which contains the provisions that lay out assessment processes. "I should add that this conclu- sion is not intended, and should not be taken, as any approval of, or excuse for, the failure of the Min- istry of the Attorney General to properly resource the assessment process," Nordheimer said in the decision, Gilbert's LLP v David Dixon Inc. "The problems that arise from that failure, both for the Bar and for the public, remain. It should also be apparent to the Ministry of the Attorney General that the time has long since passed when it ought to engage in a thorough review, and modernization, of the Solici- tors Act, and all of its provisions." Lawyers say the decision pro- vides some clarity on the proper approach of recourse that lawyers have to pursue clients for unpaid fees. The decision will mean that go- ing forward lawyers will be able to seek to recover fees through an ac- tion at the Ontario Superior Court if the amount in dispute is more than $25,000 and Small Claims See Judge, page 2 Matthew Diskin says he hopes a recent Ontario Divisional Court decision will push MAG to take a look at some of the more confusing provisions of the Solicitors Act. Photo: Robin Kuniski Lawyers can sue clients for unpaid fees Jordan Farkas says he thinks it would not be a good idea to apply the analogy rule too broadly in the Small Claims Court, where matters are supposed to be dealt with quickly. & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM

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