Law Times

Page 6 September 23, 2013 Law Times • COMMENT u Editorial obitEr By Glenn Kauth Parties have role in court delays F or those looking for more answers on why civil litigation in Toronto is experiencing so many delays, they may lie in the case of Re Exposoft Solutions Inc. in which a judge ruled on "a motion which should never have been" last week. The motion followed Exposoft Solutions' assignment in bankruptcy on Jan. 22, 2009. Bassel Annab, a party related to the bankrupt, made the sole offer to buy its assets for the bargain price of $1,000 back in October 2010. The offer included the company's intellectual property, but questions arose and the deal stalled as the trustee pondered whether to convey those assets. In the meantime, Superior Court Justice David Brown approved the sale on Feb. 23, 2012. The order referred to the sale of the "remaining residual assets," including — but not limited to, according to the judge — those listed in a schedule. But when the trustee sent the draft bill of sale on April 17, 2012, it noted it would convey assets specifically identified on the schedule. "That schedule did not include any intellectual property, in particular trademarks," wrote Brown in his Sept. 16 ruling in Exposoft. Counsel for the parties continued to correspond over the issue, and Annab himself ended up renewing the trademarks as they were about to lapse in December 2012. In May, he got a valuation on the trademarks at a cost of $2,825 that put their worth in the range of nothing to $5,000. This month, he launched his motion — the one "which should never have been," according to Brown — seeking an order to amend the approval to refer specifically to the intellectual property. At this point, the trustee, Crowe Soberman Inc., didn't oppose the order, and Annab sought full indemnity costs of $28,136 from the firm. The case follows recent coverage in Law Times about delays in the civil courts, particularly in Toronto (see "Lawyers frustrated as motion delays hit 7 months," Sept. 16). While lawyers have expressed concerns about case management in Toronto as well as a lack of resources, Exposoft hints at time wasted on motions the parties could presumably deal with in other ways. In his ruling, Brown laid out an option: "If a dispute truly existed about whether the trademarks formed part of the estate's assets — a dispute I have difficulty understanding in light of the language of Annab's offer and his counsel's February 21, 2012, communication — then a simple procedure existed to deal with the matter: the trustee should have scheduled a prompt 9:30 appointment back before me to clarify matters. Instead, I have before me a motion record, responding motion record, supplementary motion record, factum, and four cases." Brown clearly wasn't happy with how things turned out, particularly given the full-indemnity costs submission of $28,000 on a case worth so little. Ultimately, given the trustee's "failure to deal with this issue in a timely manner," he ordered it to personally pay partial indemnity costs of $3,500. It was certainly a reasonable response. While Crowe Soberman says it worked to ensure its actions were in compliance with court processes and procedures, the case itself offers further evidence that it's not just the court system, but also the actions of the parties themselves, that are causing the delays. — Glenn Kauth You can take control of your destiny BY JOHN STARZYNSKI For Law Times u SPEAKER'S CORNER A s a volunteer with the Ontario Lawyers' Assistance Program since 1995, I have heard lots of comments about the legal profession and the practice of law. Many lawyers struggle, but help is available. To address the issues facing the profession, OLAP provides one-on-one peer support to lawyers, judges, law students, and paralegals with issues related to stress, burnout, addictions, and mental health. A dedicated group of lawyers who have dealt with their own demons and have come out the other side are willing to listen to callers talk about their issues with a sympathetic, nonjudgmental ear. OLAP peer support volunteers will take people to an Alcoholics Anonymous meeting, meet for coffee, check in by phone as often as needed, and share their experiences to help them realize that as bad as things may seem, they're good and valuable individuals worthy of dignity and respect. I think an example might illustrate. I spoke to a caller over a number of months about the challenges faced in the practice of law. There seemed to be lots of them to note: clients demanding more and more for less and less; the reduction and sometimes lack of collegiality; financial stresses; the overwhelming amount of paper- Law Times work; keeping up to date with the law; time management; the adversarial nature of the profession; the need to be perfect; isolation; little or no work-life balance; fatigue; and the practical and existential questions as to whether all of the education, sacrifices, and investment of time were worth it. All of these observations about practising law were accurate from the caller's experience. Over the course of talking, the question of personal fulfilment arose. Did practising law make you happy? Would you do it again? Why did you decide to go into law? Did the negatives outweigh the positives? Talking things out in this way can be very helpful. You might realize you didn't go into the legal profession to become rich by selling your time. You see how incredibly intelligent clients and others in the profession were able to survive the challenges life threw at them. There are new ways of looking at things: changing from stressful areas of law to those you enjoy is a challenge but is doable; surrounding yourself with colleagues, partners or associates you respect helps with the isolation people experience; and learning to not be so hard on yourself acknowledges that you're not perfect. Practising to the standard of work of a competent lawyer is doable. People can solve everything with the right attitude and openness to compromise. Having a take-no-prisoners attitude isn't conducive to the best interests of your clients. Taking care of yourself physically, emotionally, and spiritually gives you the key to a fulfilling life. As we continued our conversations and relationship over the months, I realized more than ever that one-onone peer support is the most powerful method to provide balance and wellness to the legal profession. Talking to someone who understands the legal culture, how you got there, its challenges in practice, and the need for a customized solution for your specialized niche of expertise is the mandate of OLAP. Let's talk about the elephant in the room: that problem we avoid but lives with us always, filling our time and every aspect of our life. It can cause personal and professional issues unless we deal with the problem in order to find a solution. You can take control of your own destiny. LT uJohn Starzynski has been a peer support volunteer with OLAP since 1995 and shares his personal experience with bipolar illness with others. He's the president of the Mood Disorders Society of Canada and a past board member of the Ontario Suicide Prevention Network. Thomson Reuters Canada Ltd. 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